Citation Nr: 1321903 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 05-14 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for prostate cancer, status post radical retropubic prostatectomy, rated as 40 percent disabling from February 1, 2008. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted an increased rating for the Veteran's prostate cancer and denied entitlement to a TDIU. Service connection for adenocarcinoma of the prostate, status post radical retropubic prostatectomy, was granted in a February 2003 rating decision with a 100 percent disability rating effective October 23, 2002, followed by a noncompensable rating effective March 1, 2003. The rating in effect as of March 1, 2003 was subsequently increased to 10 percent. In the March 2005 rating decision on appeal, an increased rating of 40 percent was awarded effective December 6, 2004. The Veteran perfected an appeal as to the March 2005 rating decision and while the case was in appellate status, the RO increased the rating to 100 percent effective October 23, 2002, the original date of service connection. A 40 percent disability rating was also assigned effective February 1, 2008. Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement (NOD) as to an RO decision assigning a particular rating, a subsequent decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Given the assignment of a total schedular rating for the period prior to February 1, 2008, the only issue remaining before the Board is whether a rating in excess of 40 percent for service-connected prostate cancer from February 1, 2008, is appropriate. In July 2007, September 2009, October 2010, and July 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. For the period beginning February 8, 2008, the Veteran's service-connected prostate cancer, status post radical retropubic prostatectomy, manifests voiding dysfunction that most nearly approximates urine leakage requiring the wearing of absorbent materials which must be changed two to four times a day with no more than mild renal dysfunction. 2. The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for prostate cancer, status post status post radical retropubic prostatectomy, for the period beginning February 8, 2008 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2012) 2. The criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim Service connection for adenocarcinoma of the prostate, status post radical retropubic prostatectomy, was granted in a February 2003 rating decision with a 100 percent disability rating assigned effective October 23, 2002, followed by a noncompensable rating effective March 1, 2003. The March 2005 rating decision on appeal awarded an increased 40 percent evaluation effective December 6, 2004. The disability is currently rated as 100 percent disabling prior to February 1, 2008 and 40 percent disabling thereafter. Thus, the Board must determine whether a rating in excess of 40 percent is warranted for the Veteran's prostate cancer for the period beginning February 1, 2008. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's prostate cancer, status post radical retropubic prostatectomy, is currently rated as 40 percent disabling from February 1, 2008 under Diagnostic Code 7528 pertaining to malignant neoplasms of the genitourinary (GU) system. Under this diagnostic code, malignant neoplasms of the GU system are rated as 100 percent disabling. A note following the diagnostic code states that after the cessation of 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 subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (pertaining to rating reductions). If there has been no local reoccurrence or metastasis, rate on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. As a preliminary matter, the Board finds that a 100 percent evaluation is not appropriate for the Veteran's prostate cancer under Diagnostic Code 7528 for malignant neoplasms. The Veteran was first diagnosed with adenocarcinoma of the prostate in July 2002 and underwent a radical prostatectomy on July 10, 2002. He experienced a recurrence of the malignancy in 2006, and received radiation therapy from August 2006 to October 2006 and hormone therapy to July 2007. VA treatment records from the Sonny Montgomery Jackson VA Medical Center (VAMC) do not demonstrate any further recurrence of active cancer, and the Veteran has not received any additional radiation or hormone therapy. A VA examiner also opined in December 2010 that the Veteran had not experienced a recurrence of prostate cancer since 2006. A similar finding was made upon VA examination in August 2012, when the Veteran's condition was characterized as in remission with no treatment since 2007. It is therefore clear that the Veteran's service-connected prostate cancer has not manifested malignant neoplasms during the period beginning February 1, 2008 and a 100 percent evaluation is not appropriate under Diagnostic Code 7528. The Board must now determine whether a rating in excess of 40 percent is warranted based on the residuals of the Veteran's prostate cancer such as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. 38 C.F.R. § 4.115a provides descriptions of various levels of disability related to renal or voiding dysfunctions. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Because the areas of dysfunction described do not cover all symptoms resulting from GU diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. The Veteran's current 40 percent evaluation is assigned for voiding dysfunction. After review of the record, the Board finds that voiding dysfunction represents the predominant residual of his service-connected disability. Treatment records from the Jackson VAMC document consistent treatment with the urological and radiation therapy follow-up clinics for complaints related to urinary and fecal incontinency and urgency throughout the claims period. VA examiners in September 2009, December 2010, and August 2012 also identified residuals of prostate cancer characterized as voiding dysfunction secondary to the Veteran's radical prostatectomy and radiation therapy. Laboratory results from August 2007 and June 2011 showed slightly increased creatinine levels with only a mild decrease in kidney function. Furthermore, the Veteran was diagnosed with diabetic nephropathy upon VA renal examination in August 2012, and this condition is clearly related to diabetes, not residuals of prostate cancer, and the VA examiner found that the Veteran was asymptomatic. The Board therefore finds that the Veteran's voiding dysfunction is clearly the predominant residual of his service-connected prostate cancer and rating the disability as renal dysfunction is not appropriate. Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. The Veteran is currently in receipt of the maximum rating possible based on urinary frequency. A rating in excess of 40 percent is also not possible based on obstructed voiding or urinary tract infections. Hence, the Board will address whether an increased rating is warranted for urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence). Urine leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day is rated as 40 percent disabling. Urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is rated as 60 percent disabling. 38 C.F.R. § 4.115a. The Board finds that the Veteran's urine leakage does not most nearly approximate the criteria associated with a 60 percent evaluation. VAMC treatment records, while noting consistent complaints of urinary frequency, urgency, and incontinence, do not establish that the Veteran has required an appliance or absorbent material that must be changed more than 4 times per day. In fact, beginning in May 2009, the Veteran's VA physicians have noted that his urinary symptoms responded to medication and improved. During an August 2011 visit to the urology clinic, the Veteran's symptoms were characterized as only mild urinary incontinence. An October 2011 flexible cystourethroscopy also showed cystitis changes at the base of the bladder, but there were no lesions or contracture of the bladder neck. The August 2012 VA examiner also specifically found that the Veteran's urine leakage did not require an appliance and he only needed to change his absorbent materials two to four times a day. The Board has considered the Veteran's statements regarding the residuals of his disability, including complaints of incontinence and nocturia, but he has never reported requiring the use of an appliance or wearing absorbent materials that must be changed more than four times per day. The Veteran's residual urine leakage clearly does not most nearly approximate the criteria associated with an increased rating at any time during the claims period. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. The evidence of record indicates that the Veteran's condition is manifested by urinary leakage, precisely the symptoms contemplated by 38 C.F.R. § 4.115a, pursuant to which his condition is rated. Because there is no evidence of symptoms that would present a disability picture more severe than that contemplated by the rating schedule, extraschedular referral is not warranted in this case. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. TDIU Claim The Veteran contends that TDIU is warranted in this case as he is unemployable due to his service-connected prostate cancer, diabetes mellitus, and diabetic polyneuropathy of the upper and lower extremities. TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). If these percentage requirements are not met, but the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). The Veteran is service-connected for adenocarcinoma of the prostate, rated as 40 percent disabling; diabetes mellitus, rated as 40 percent disabling; diabetic neuropathy of the bilateral lower extremities, each rated as 10 percent disabling; diabetic neuropathy of the bilateral upper extremities, each rated as noncompensably disabling; and erectile dysfunction, also rated as noncompensably disabling. His combined evaluation for compensation for the period beginning March 14, 2013 is 70 percent. Therefore, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) from March 14, 2013. For the period prior to March 14, 2013, the Veteran's combined evaluation for compensation is only 60 percent. In March 2013, the Director of Compensation and Pension Services (C&P Director) denied an award of TDIU on an extraschedular basis. Since the issue of a TDIU on an extraschedular basis has been considered by the C&P Director, the Board may now review the denial of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001). The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record establishes that the Veteran last worked full-time in July 2002, when he was employed as a truck driver. He worked in this occupation for over 20 years, and stopped working after he was hospitalized for new onset diabetes mellitus at Rush Foundation Hospital from August to September 2002. On two VA Forms 21-8940 (dated in December 2004 and October 2007), the Veteran reported completing two years of high school with no other training or technical expertise. After review of the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected diabetes and prostate cancer residuals as he is precluded from performing gainful employment for which his education and occupational experience would otherwise qualify him. The record contains some competent medical evidence indicating that the Veteran's unemployability may be due in part to nonservice-connected disabilities. Throughout the claims period, the Veteran's VA and private health care providers have attributed his unemployability to a combination of disabilities, including nonservice-connected blindness in the right eye, peripheral vascular disease (PVD) of the lower extremities, and cardiovascular disease. A September 2003 correspondence from the Veteran's private physician included an opinion that the Veteran was unable to work due to diabetes mellitus, hyperlipidemia, hypertension, and loss of vision in the right eye. In March 2004, a VA examiner concluded that the Veteran could not work as a truck driver due to his nonservice-connected eye disability. The Veteran's PVD and low back pain also precluded any kind of physical labor; however, the March 2004 VA examiner noted that the Veteran reported having no training for an office or deskwork type of job. A decision from the Social Security Administration (SSA) dated in January 2006 also found that the Veteran was unable to work especially due to significant loss of vision and observed that he had no skills transferable to work within his residual functional capacity. More recently, a VA examiner stated in December 2010 that the Veteran's residuals of prostate cancer did not prevent him from working in a field other than truck driving as long as there was a bathroom close by as he experienced symptoms of urinary and fecal incontinence. In September 2009, VA examiners also found that the Veteran's diabetes mellitus and peripheral neuropathy with mild sensory loss did not prevent employment. The Board notes that none of the above medical opinions considered whether the Veteran's service-connected disabilities in combination caused unemployability. In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion addressing the effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294 (1994). In September 2012, a VA physician provided an opinion that considered the effect of all the Veteran's service-connected disabilities on his employability. The VA doctor concluded that the Veteran was no longer able to work as a truck driver due to insulin therapy and residuals of prostate cancer. Furthermore, the Veteran was unable to drive any commercial vehicles, operate dangerous equipment, or work in an environment without access to a bathroom at all times. The Veteran was found capable of performing sedentary type work or mild physical labor with appropriate access to bathroom facilities. Although the September 2012 VA doctor found the Veteran was capable of performing sedentary work or mild physical labor, in light of the Veteran's industrial and educational background, the Board finds that the evidence of record establishes his service-connected disabilities have rendered him unemployable. The restrictions placed on the Veteran by his diabetes and residuals of prostate cancer severely limit his employment options, especially with consideration of his background which is limited to a tenth grade education and prior work experience exclusively as a truck driver. Although a March 2013 memorandum from the Director of the VA Compensation and Pension Service found that the Veteran was not entitled to TDIU on an extra-schedular basis, this opinion did not take into account the Veteran's limited educational and industrial background. With consideration of all the evidence of record, the Board finds that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. The claim for entitlement to TDIU is granted. Duties to Notify and Assist VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). VA has substantially satisfied the duties to notify and assist with respect to the claim for entitlement to TDIU. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. Notice with respect to the Veteran's increased rating claim was provided in a September 2005 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in a June 2006 letter. The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case (SSOC). Mayfield, 444 F.3d at 1333. VA has also met the duty to assist. VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, private medical records, and records from the SSA. Additionally, the Veteran was provided a proper VA examination in August 2012 in response to his claim for an increased rating. The Board also finds that VA has complied with the July 2007, September 2009, October 2010, and July 2012 remand orders of the Board. In response to the Board's remands, the Veteran was provided a VA examination to determine the current severity of his prostate cancer in August 2012 and the record contains a September 2012 VA medical opinion addressing the effect of all the Veteran's service-connected disabilities on his ability to work. The claim for entitlement to TDIU was also referred to the Director for consideration of extra-schedular consideration under 38 C.F.R. § 4.16(b) (2012) and a memorandum from the Director was received in March 2013. In addition, VA has obtained all available treatment records from the Jackson VAMC dated from August 2005 to the present and associated the records with the Veteran's paper and virtual claims file. The case was then readjudicated in the March 2013 SSOC. Therefore, VA has complied with the remand orders of the Board. ORDER Entitlement to an increased rating for prostate cancer, status post radical retropubic prostatectomy, rated as 40 percent disabling from February 1, 2008, is denied. Entitlement to TDIU is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs