Citation Nr: 1338975 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-00 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial disability rating greater than 20 percent for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy, to include entitlement to a disability rating greater than 20 percent from May 1, 2009 to February 2, 2010 and greater than 60 percent beginning February 2, 2010. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In June 2010, the Veteran and his spouse testified before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims folder. In a March 2011 decision, the Board remanded the matter to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. The requested actions having been completed and the matter having been readjudicated by the RO in a March 2012 Supplemental Statement of the Case, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The RO also issued a rating decision in March 2012 granting a 60 percent evaluation, increased from 20 percent, for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy effective February 2, 2010. As that rating decision did not result in the full grant of benefits sought, the issue addressed by that rating decision is subsumed by those now on appeal. The issues have been restated to reflect that fact. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran has experienced a local recurrence of prostate cancer with onset in 2008. 2. The Veteran is already in receipt of a 70 percent schedular rating for post-traumatic stress disorder (PTSD) and is entitled to a 100 percent schedular rating for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy. CONCLUSION OF LAW 1. The criteria for a 100 percent disability rating for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.13, 4.115b, Diagnostic Code (DC) 7528 (2012). 2. The issue of TDIU has been rendered moot at this time. 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. A 100 percent evaluation under DC 7528 is warranted for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, DC 7528 (2012). A note following that code provides that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, and other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in rating based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the rating should be based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant. Thus, the 100 percent rating under DC 7528 should be continued until a medical examiner determines that there has been no local reoccurrence or metastasis. The Veteran was exposed to Agent Orange during his service in Vietnam, which service included combat. Most pertinently for this appeal, the Veteran is service connected for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy. Treatment records show that the Veteran underwent a biopsy of his prostate in July 2006 which confirmed adenocarcinoma of the prostate. In November 2006, the Veteran's treating physician performed a radical retropubic prostatectomy. The Veteran's treatment for the adenocarcinoma also included radiation therapy through May 2007. The Veteran was initially rated at 100 percent for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy. After cessation of all therapeutic procedures and no finding of a recurrence or metastasis, the Veteran's service-connected adenocarcinoma of the prostate was evaluated on the basis of residuals as voiding dysfunction. The RO assigned a disability rating of 20 percent effective March 1, 2009. Thereafter, effective February 2, 2010, the disability rating was increased to 60 percent due to worsening symptoms. The Veteran has consistently maintained that he is entitled to a 100 percent disability rating throughout the period on appeal for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy. As discussed in the introduction, this matter was remanded to the RO in March 2011 for further development. As part of that development, the Veteran underwent a March 2011 examination by a VA physician for the purpose of determining, among other things, "whether the Veteran has experienced a local recurrence of prostate cancer since he last underwent radiation therapy." See March 2011 Report on VA Examination. The VA examiner reviewed the Veteran's medical records, the claims file, and conducted an examination. Review of the medical records indicates that the Veteran's levels of prostate-specific antigen (PSA) ranged from a low of 0.148 in January of 2007 to a high of 1.130 at the March 2011 VA examination. The rising PSA levels had been noted with concern several times by the Veteran's treating physicians. See, e.g., March 2009 Urology Attending Note ("Recent upward trend in PSA"); November 2008 Urology Attending Note ("Recent upward trend in PSA"). The VA examiner, after reviewing the medical records documenting the Veteran's PSA levels, concluded that the Veteran had, at least as likely as not, experienced a local recurrence of prostate cancer since he last underwent radiation therapy. The VA examiner further opined that the date of onset of the recurrence "appears to be in 2008." While the Veteran had not undergone a biopsy to confirm the recurrence of prostate cancer at the time the VA examiner provided his opinion, neither has any medical expert opined that the Veteran has not experienced a local recurrence. In other words, the only competent, probative medical evidence before the Board indicates that it is at least as likely as not that the Veteran has experienced a local recurrence of prostate cancer and that the onset of that recurrence was in 2008. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board may not base its decision on its own medical opinion). Where a preponderance of the evidence is in favor of the Veteran's claim or where the evidence is in relative equipoise, the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Generally, the Board does not remand to get negative evidence against the claim. Because the Board is constrained to conclude that the Veteran has suffered a local recurrence of prostate cancer, the Veteran is entitled to a disability rating of 100 percent for malignant neoplasms of the genitourinary system. See 38 C.F.R. § 115b, DC 7528. The Board further finds that, because the onset of the recurrence was in 2008, the question of whether, at any time after 2008, the Veteran was entitled to a higher disability rating based on residuals such as voiding dysfunction or renal dysfunction is moot. See 38 C.F.R. § 115b, DC 7528. When this 100% rating should end, if at all, is not before the Board in the first instance at this time (this issue should be address, if needed by the RO). Total Disability for Individual Unemployability (TDIU) The Veteran has appealed the denial of his claim for TDIU. Because of the Board's resolution of the Veteran's claim for entitlement to a higher disability rating for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy to 100% the claim for TDIU is moot. A brief explanation is in order. A veteran is entitled to special monthly compensation (SMC) when the veteran has 'a service-connected disability rated as total' and a separate disability or disabilities rated at 60% or higher. 38 U.S.C. § 1114(s). The Board has determined that the Veteran is entitled to a disability rating of 100 percent for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy for the entire appeal period. Thus, the Veteran has a service-connected disability rated as total. The Veteran also has been awarded a disability rating of 70 percent for his post-traumatic stress disorder (PTSD), thereby meeting the second prerequisite for SMC under section 1114(s). Therefore, the Board's grant of a 100 percent disability rating for adenocarcinoma of the prostate now qualifies the Veteran for SMC and grant of TDIU cannot increase the benefits to which the Veteran would be entitled. Compare Locklear v. Shinseki, 24 Vet. App. 311, 314 n. 2 (2011) (consideration of TDIU unnecessary where 100 percent schedular rating granted) with Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that a claim for TDIU was not moot where a grant of TDIU would qualify a veteran for special monthly compensation, which in this case is not an issue because of the 70% evaluation for PTSD). Because a grant of TDIU could not increase the benefits to which the Veteran is entitled, the claim for TDIU is moot and must be dismissed. Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). The Board notes that, if the disability rating for adenocarcinoma of the prostate is reduced in the future, the issue of TDIU would no longer be moot. In that case, entitlement to TDIU should be reconsidered for any period in which the Veteran does not receive a 100 percent schedular rating for that disability. However, the Board can not address this issue in the first instance. ORDER An evaluation of 100 percent for adenocarcinoma of the prostate, status post radical retropubic prostatectomy and radiation therapy is granted, subject to controlling regulations governing the payment of monetary awards. The claim of entitlement to TDIU is dismissed as moot. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs