Citation Nr: 1337113 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-26 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a referral for an extraschedular evaluation for residuals, prostate cancer, status post radical prostatectomy, currently rated as 60 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This rating decision implemented a March 2007 proposal to reduce the evaluation for the Veteran's residuals, prostate cancer, status-post radical prostatectomy, from 100 percent to 20 percent, effective from August 1, 2008. In December 2011, the Board issued a decision which, in pertinent part, granted a schedular increase from 20 percent to 60 percent for the Veteran's service-connected prostate disability, and denied the Veteran an extraschedular disability rating for his service-connected prostate disability pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). A January 2012 rating decision which implemented the Board decision assigned the 60 percent evaluation for the prostate disability effective from August 1, 2008. The Veteran appealed the Board's December 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 memorandum decision, the Court remanded that part of the Board's December 2011 decision which denied referral of the issue for extraschedular evaluation in excess of 60 percent for the Veteran's residuals, prostate cancer, status post radical prostatectomy. In this regard, in an October 2013 informal hearing presentation, the Veteran's representative listed the issues of whether the reduction of the Veteran's evaluation from 100 percent for residuals, prostate cancer, status post radical prostatectomy effective August 1, 2008 was proper; and entitlement to an evaluation in excess of 60 percent for residuals, prostate cancer, status post radical prostatectomy. However, the Veteran only appealed that part of the Board's December 2011 decision that denied referral for an extraschedular evaluation for residuals, prostate cancer, status post radical prostatectomy, and the Court, in its June 2013 memorandum decision, affirmed the Board's December 2011 decision with regard to the remaining issues. Therefore, the only issue currently on appeal is entitlement to a referral for an extraschedular evaluation for residuals, prostate cancer, status post radical prostatectomy, as listed on the title page of this decision. The issue of entitlement to a 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. VA will notify the appellant if further action is required on his part. FINDING OF FACT The Veteran's residuals, prostate cancer, status post radical prostatectomy, are contemplated by the rating schedule, and the currently assigned schedular evaluation, based on urinary leakage, is adequate. CONCLUSION OF LAW The criteria for referral for consideration of an extraschedular evaluation in excess of 60 percent for residuals, prostate cancer, status post radical prostatectomy, have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.115a, 4.115b, Diagnostic Code 7528 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Although the Veteran was not provided VCAA notice on the issue of an extraschedular rating, the Board finds that the Veteran had actual knowledge of the pertinent laws and regulations and the information and evidence necessary to substantiate the claim. As such, the Veteran has not been prejudiced by any notice defect. An August 2008 statement of the case informed the pertinent regulations and standards for assigning extraschedular rating. Further, the Veteran's Brief of Appellant submitted to the Court for his appeal of the Board's December 2011 decision specifically raised the argument that the Board applied an erroneous interpretation of the 38 C.F.R. § 3.321(b)(1) and failed to provide adequate reasons and bases for its decision not to refer the Veteran's claim for extraschedular consideration. Further, 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. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See 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). The record contains VA and private clinical records, as well as statements by the Veteran and his representative in support of the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that there exist any available outstanding records for consideration. Further, the Veteran was afforded a VA examination in conjunction with this case, and such examination considered the Veteran's medical history, and outlined examination findings necessary for consideration under the applicable schedular and extraschedular rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duty to assist has also been met. 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 case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Finally, the Board wishes to make clear that, in this case, although the extraschedular consideration had not yet been addressed by the RO, the Board is not required to remand the Veteran's increased rating claim for an initial determination as to whether the extraschedular component of the claim should be referred to the Under Secretary for Benefits or the Director of Compensation & Pension Service under 38 C.F.R. § 3.321(b). Indeed, in Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarifies that 38 C.F.R. § 3.321(b)(1) does not preclude the Board from considering whether referral of a claim to the appropriate first-line officials to address the question of entitlement to an extraschedular rating is required. Bagwell specifies that the Board is also not precluded from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to § 3.321(b)(1), or from reaching such a conclusion on its own. In addition, the Court in Bagwell found that the denial of an extraschedular rating by the Board in the first instance does not violate the prejudice safeguard set forth in Bernard v. Brown, 4 Vet. App. 384 (1993). The Court reaffirmed that the question of an extraschedular rating is a component of a claim for an increased rating before the RO. Just as the appellant in Bagwell had a full opportunity to present his increased rating claim before the regional office, so too did the Veteran in this case. Thus, consideration by the Board, in the first instance, of whether to refer a matter for consideration of an extraschedular rating does not result in prejudice to the appellant, and in the absence of a showing of prejudice, the Board's determination in this regard does not mandate a remand. See Bagwell, 9 Vet. App. at 339. The December 2011 Board decision addressed in full the application of the schedular rating criteria to the Veteran's residuals, prostate cancer, status post radical prostatectomy. The issue as to whether a referral for an extraschedular evaluation in excess of 60 percent for the Veteran's prostate disability is warranted has returned then to the Board. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, after a complete review of all the evidence in the claims file, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for his prostate disability is inadequate. The Veteran's residuals, prostate cancer, status-post radical prostatectomy, are currently evaluated as 60 percent disabling for urinary leakage under 38 C.F.R. § 4.115b, Diagnostic Code 7528, under which active malignant neoplasms of the genitourinary system are 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. If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. In this case, there is no evidence or allegation of a recurrence of active prostate cancer and the medical evidence and the Veteran's own contentions, as discussed below, show that the predominant residual of his prostate cancer is voiding dysfunction, specifically urine leakage. Specifically, a January 2007 VA examination confirmed that the prostate cancer was in remission and no longer active. The examination found no evidence of local metastasis or reoccurrence. The Veteran reported that since the prostate surgery he had a small problem with incontinence in that he had occasional leakage but no frank incontinence. He wore a pad when he was leaving home for large amounts of time greater than several hours. In correspondence received in June 2008 and September 2008, the Veteran stated that he had to wear absorbent materials 24 hours a day, and often changed pads 3 to 5 times a day. He had to sleep on a waterproof quilt because the pads sometimes leaked onto his bed before he woke up to change them. On a June 2010 VA Form 21-4142, the Veteran stated that he and his VA doctor had discussed the fact that the Veteran daily used 6-10 pads due to his prostate removal. The problem had gotten worse in the past 2 to 3 years from surgery in 2002. He stated that VA would now provide pads for him. In October 2010 correspondence, the Veteran stated that he had used 3 to 5 pads daily for over 3 years. He did not know until recently that VA would provide pads for him. He had been buying and using about 150 pads per month and not keeping any receipts for them. Now he was getting pads from the Grove City VA Clinic after his last doctor appointment there. VA outpatient treatment records dated from July 2009 to June 2010 reflect urinary incontinence and include a June 2010 request for guards due to incontinence secondary to prior prostate surgery. Private outpatient treatment reports dated from August 2009 to March 2010 also reflect urinary incontinence. A March 2012 VA examination report noted that the Veteran had voiding dysfunction causing urinary leakage that required absorbent material which must be changed more than 4 times per day, and daytime voiding interval between 1 to 2 hours and nighttime awakening to void 3 to 4 times. The examiner opined that the Veteran's erectile dysfunction and incisional hernia which are secondary to his service-connected prostate disability have no impact on the Veteran's ability to obtain and maintain gainful physical or sedentary employment. The examiner further opined that although the Veteran's residuals of prostate cancer status post surgery required the Veteran to urinate more frequently, this should not affect sedentary or physical employment. The examiner added that urinary frequency is a relatively common condition. Based on the foregoing evidence, the Veteran's prostate disability is evaluated by rating criteria contemplating the urinary leakage requiring the use of absorbent materials that must be changed frequently. Specifically, urinary leakage involves schedular ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed, less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, the maximum scheduler evaluation of 60 percent is warranted. See 38 C.F.R. § 4.115a. The Veteran's residuals of prostate cancer are manifested by urinary incontinence requiring the constant use of absorbent materials or pads which must be changed 3 to 10 times per day, and he does not show other unusual symptoms associated with this disability that have been unaccounted for by the currently assigned maximum schedular rating criteria. See 38 C.F.R. § 4.115a. This disability picture as presented by the foregoing evidence is specifically contemplated by the current 60 percent evaluation for continual urine leakage or urinary incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. In the June 2013 memorandum decision, the Court found that the Board failed to explain how the rating schedule contemplates a situation where the frequency is so great that it requires considerations beyond simply changing pads. However, such a situation is simply not shown in this case. The Veteran's description of his urinary frequency included that he had to sleep on a waterproof quilt because the pads sometimes leaked onto his bed before he woke up to change them. In other words, this description is fairly consistent with a disability picture involving continual urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Although the rating criteria do not specifically state that there may be occasional leaking during the nighttime despite the use of absorbent materials, it is reasonable to assume that there could be occasional leaking with use of pads, especially with less voiding interval during the night. Therefore, the Board concludes that the Veteran's use of a waterproof quilt on the bed due to occasional leaking would be common instances associated with the disability picture contemplated under the schedular criteria and that it does not present an exceptional disability picture that renders the available schedular rating inadequate or inappropriate. Furthermore, more recently, during a March 2012 VA examination report, the Veteran reported that his urinary leakage required absorbent material which must be changed more than 4 times per day, and daytime voiding interval between 1 to 2 hours and nighttime awakening to void 3 to 4 times. 38 C.F.R. § 4.115a provides that urinary frequency is rated as 40 percent disabling with daytime voiding interval of less than 1 hour or nighttime awakening to void 5 or more times per night; as 20 percent disabling with daytime voiding interval between 1 and 2 hours or awakening to void 3 to 4 times per night; and as 10 percent disabling with daytime voiding interval between 2 and 3 hours or awakening to void 2 times per night. By these ratings, it is clear that the schedular rating criteria specifically contemplate nighttime awakenings caused by urinary frequency. However, the level of the severity of the Veteran's prostate disability would be rated as 20 percent under these rating criteria, which is not the most favorable to the Veteran. Therefore, the Veteran's voiding dysfunction is rated under the criteria contemplating continual urine leakage requiring the wearing of absorbent materials. The Veteran's attorney argued in the brief that "nowhere does the rating schedule contemplate the possibility that absorbent pads may be inadequate to control incontinence, or that the pads must be worn at all times." However, the rating schedule indeed contemplates the possibility that an absorbent pad must be worn at all time because the current 60 percent rating is assigned specifically for continual urine leaking, which is the disability picture presented in the Veteran's case. The Board does not exclude the possibility that there may be an exceptional situation where the continual urine leaking is of such severity that use of absorbent pads would not be adequate to control incontinence. However, this is not shown in this case. The mere fact that the Veteran has to use a waterproof quilt at night due to occasional leaking while sleeping does not show an exceptional disability picture because occasional leaking, if not excessive, is rather common with using absorbent pads. Further, in a July 2013 written statement, the Veteran indicated that "I must change absorbent pads often some 7 to 10 per day to stay clean," which reflects that with frequent changes of the pads, he is in fact able to stay clean, and that the use of absorbent materials is adequate to control incontinence. As such, a comparison between the level of severity and symptomatology of the Veteran's prostate disability with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology at all times during the pendency of the appeal. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." Specifically, there simply is no objective evidence that his prostate disability, acting alone, has resulted in frequent periods of hospitalization or in marked interference with employment above that contemplated by the 60 percent disability rate at any time during the pendency of the appeal. See Bagwell v. Brown, 9 Vet. App. 337 (1996). In fact, the March 2012 VA examination includes a medical opinion that although the Veteran's residuals of prostate cancer status post surgery required the Veteran to urinate more frequently, this should not affect sedentary or physical employment and that urinary frequency is indeed a relatively common condition. Further, the record does not show that the Veteran's residuals, prostate cancer, status post radical prostatectomy, have caused any hospitalizations. Therefore, the Board finds that the evidence does not demonstrate "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). In short, there is no indication in the record that the Veteran's prostate disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating (60 percent) at any time during the period on appeal. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a referral for an extraschedular evaluation for residuals of prostate cancer, status post radical prostatectomy is denied. REMAND A TDIU claim is part of an increased rating claim and is properly before the Board when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran indicated in February 2012 that he wished to make a claim for a TDIU, and the Veteran submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in July 2013. However, as the issue of entitlement to a TDIU has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). RO adjudication of the matter is required prior to appellate consideration by the Board. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) in accordance with 38 U.S.C.A. §§ 5102 , 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2011), and applicable legal precedent. 2. Thereafter, schedule the Veteran for a general medical examination to determine whether his service-connected disabilities, considered in combination, (and only his service-connected disabilities) render the Veteran unemployable. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected disabilities, considered in combination, are so severe that it is impossible for the him to obtain or sustain substantially gainful employment, consistent with his education and occupational experience. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The clinician should review the claims folder, and this fact should be noted in the accompanying medical report. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2011). 3. Following completion of the above, adjudicate the issue of entitlement to a TDIU. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant 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. 2011). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs