Citation Nr: 1324527 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 05-18 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an extra-schedular rating for prostate cancer, status post radical retropubic prostatectomy, pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2009 and January 2011, the Board remanded the claim for entitlement to an initial rating higher than 60 percent for prostate cancer, status post radical retropubic prostatectomy, for further development. A schedular rating in excess of 60 percent was denied in a July 2012 Board decision. Attached to that decision was a remand of the issue of entitlement to an extra-schedular evaluation for the prostate disability, and that issue now returns to the Board for appellate review. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's prostate cancer, status post radical retropubic prostatectomy, has not presented an exceptional or unusual disability picture so as to render application of the rating schedule impractical. CONCLUSION OF LAW The criteria for referral for consideration of an extra-schedular evaluation in excess of 60 percent for prostate cancer, status post radical retropubic prostatectomy have not been met. 38 U.S.C.A. 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.115a, 4.115b, Diagnostic Code 7527 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in July 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to provide the Veteran with corrective VCAA notice as to extra-schedular ratings and to allow for consideration of referral of the Veteran's prostate disability for extra-schedular consideration by the Director, Compensation and Pension Service. A review of the post-remand record shows that the VCAA letter was sent in August 2012. The RO then considered whether referral for extra-schedular consideration was appropriate in the January 2013 supplemental statement of the case (SSOC) and found that such referral was unnecessary. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the July 2012 remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was first provided VCAA notice on the issue of extra-schedular ratings in August 2012, in accordance with the July 2012 Board remand. This notice informed the Veteran of the evidence necessary to substantiate an extra-schedular rating, of how VA would assist him in developing his claim, and of his and VA's obligations in providing such evidence for consideration. The letter also advised him of the criteria for consideration in the assignment of disability ratings and effective dates in general. While this notice was not provided prior to the initial adverse determination in May 2004, the Board finds that no prejudice to the Veteran has resulted from this timing deficiency. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that a statement of the case (SOC) and SSOC constitute a "readjudication decision" that complies with all due process requirements if preceded by adequate VCAA notice. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, providing the Veteran with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See id., citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, subsequent to the letter sent in August 2012, the Veteran was provided an SSOC that specifically addressed the question of extra-schedular referral. Therefore, any deficiency of timing of notice was rectified by subsequent readjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA treatment records and the reports of February 2004, September 2006, and February 2011 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The Board notes that the record establishes that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). However, multiple requests to the SSA for records pertinent to his claim and award of those benefits yielded the response that no records for the Veteran were available. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating. The Board acknowledges that neither the February 2004 nor the September 2006 VA examiner documented review of the claims file. However, this factor alone does not render the examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In a rating claim, it is the current symptomatology of the disability that is most relevant to the claim. In the report, the examiner provided the information required to determine the appropriate disability rating and whether extra-schedular referral is necessary. Nothing suggests that the examiners documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination reports in this case are adequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue decided herein has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis The July 2012 Board decision and remand addressed in full the application of the schedular rating criteria to the Veteran's prostate disability. The RO had assigned a 60 percent rating for urinary leakage. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527. The undersigned Veterans Law Judge determined that the assigned rating was appropriate, noting that a higher schedular rating was only available for certain manifestations of renal dysfunction. However, finding that the medical evidence did not show that the Veteran has renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, a rating in excess of 60 percent assigned was denied. As the Veteran did not meet the criteria for a schedular increased rating, any increased evaluation would therefore have to be assigned on an extra-schedular basis. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extra-schedular 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 Rating 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 Rating 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 schedular criteria inadequate. Prostate cancer, status post radical retropubic prostatectomy, has been evaluated under voiding dysfunction, which criteria the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, or postoperative residuals are rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2012). As the Veteran does not exhibit renal dysfunction, the criteria for voiding dysfunction were applied. Specifically, a 60 percent rating was assigned for the entire appeal period for the Veteran's urinary leakage requiring up to 10 pads or diapers per day. The Board acknowledges that this rating does not directly contemplate the Veteran's urinary frequency of voiding every hour during the day and at least three times per night, but only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115a. In this case, the Veteran's urinary leakage warrants a higher rating than his urinary frequency. In light of the above, when comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 60 percent disability rating as assigned by the RO. Evaluations in excess of that assigned are provided for certain manifestations of residuals of adenocarcinoma of the prostate, namely renal dysfunction, but as noted above, the Board has found that the evidence demonstrates that those manifestations are not present in this case. The criteria for the 60 percent rating assigned reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required. See 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). The Board notes that this finding does not address the degree of functional impairment caused by the prostate disability, that is, whether it causes marked interference with employment, or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). The evidence reflects that the Veteran has not been employed since 2002, when he left his employment in security as a result of his prostate cancer and surgery. The extent to which the Veteran's prostate disability has inhibited or prohibited his employment is addressed in the Remand below. In addition, the Board acknowledges that the Veteran indicated at the February 2011 VA examination that, because of his continued urinary incontinence, he tends to not go out much as he frequently has to change his diapers and he fears that the diapers may emit an odor; so, he tends to stay home. The Board is sympathetic to the Veteran's concerns; nevertheless, as the Board has determined that the Veteran's symptoms are not outside the schedular criteria, the threshold requirement for extra-schedular referral has not been met. Therefore, no additional discussion of the impact of the Veteran's prostate disability on work and other daily activities is necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against a finding that the Veteran's prostate disability symptomatology is not contemplated by the schedular criteria. Therefore, the claim is denied. ORDER Entitlement to a referral for an extra-schedular evaluation of prostate cancer, status post radical retropubic prostatectomy, currently rated 60 percent disabling, is denied. REMAND While the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). Here, the Board notes that the Veteran's representative argued in an April 2013 submission that the Veteran is entitled to TDIU. The Board acknowledges that the representative was arguing entitlement to TDIU in the context of 38 C.F.R. §3.321(b), rather than 38 C.F.R. § 4.16; nevertheless, the record clearly shows that the Veteran is unemployed and that his service-connected disabilities impact his ability to work. Therefore, the Board concludes that a claim of entitlement to TDIU has been raised by the record. The Veteran is service-connected for posttraumatic stress disorder with major depressive disorder and polysubstance abuse, rated as 70 percent disabling; prostate cancer, status post radical retropubic prostatectomy, rated as 60 percent disabling, and calluses of the bilateral big toes, rated as noncompensable. He has a combined rating of 90 percent. Therefore, he meets the schedular criteria for TDIU, which require that he have at least one service-connected disability rated at 60 percent or one disability rated at least 40 percent disabling with sufficient additional disability for a combined rating of 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In light of these facts, the Board determines that the Veteran should be scheduled for a VA examination to assess whether he is unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter that advises the Veteran of how to substantiate a claim of entitlement to TDIU. 2. Schedule the Veteran for a VA examination to determine the impact that all of his service-connected disabilities, in combination, have on his employability. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The claims file must be made available for review and the examiner's report should reflect that such review occurred. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. Based on a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, considered in combination, render the Veteran unable to obtain or maintain substantially gainful employment consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. The examination report must include a complete rationale for all opinions and conclusions reached. 3. Thereafter, complete any further development deemed appropriate and adjudicate the issue of entitlement to TDIU. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs