Citation Nr: 1752693 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-27 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for status post radical suprapubic prostatectomy, adenocarcinoma of the prostate. 2. Entitlement to an effective date earlier than August 20, 2008, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and February 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a December 2011 decision, the Board denied the Veteran's claim for an earlier effective date for the grant of a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which, in an August 2012 order, granted the parties' July 2012 Joint Motion for Remand (JMR), vacating the Board's December 2011 decision and remanding the matter to the Board. In a January 2013 decision, the Board again denied the Veteran's claim for an earlier effective date for the grant of a TDIU, and again the Veteran appealed. In March 2014, the Court issued a Memorandum Decision vacating and remanding the January 2013 Board decision. In an August 2014 remand, the Board determined that the Veteran had submitted a timely Notice of Disagreement (NOD) in August 2008 with respect to an October 2007 rating decision which assigned a 40-percent rating for the Veteran's service-connected prostate condition. Accordingly, the Board directed the Agency of Original Jurisdiction (AOJ) to issue a Statement of the Case (SOC) readjudicating the claim for an increased rating for a prostate condition, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Board found that the issue of entitlement to an earlier effective date for the grant of a TDIU was inextricably intertwined with the increased rating issue, and thus would be remanded as well. In February 2017, the AOJ issued an SOC denying entitlement to an increased rating for the Veteran's prostate condition. He perfected his appeal as to this issue in March 2017. The matter has now been returned to the Board for review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's status post radical suprapubic prostatectomy, adenocarcinoma of prostate, has been manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. Voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day has not been shown. 2. Effective January 19, 2007, the Veteran was in receipt of service connection for status post radical suprapubic prostatectomy, adenocarcinoma of prostate (rated as 40-percent disabling); major depressive disorder, recurrent, severe, without psychotic features associated with status post radical suprapubic prostatectomy, adenocarcinoma of prostate (rated as 30-percent disabling); and loss of erectile power associated with status post radical suprapubic prostatectomy, adenocarcinoma of prostate (rated as noncompensable). 3. Effective January 19, 2007, the Veteran's combined disability rating was 60 percent. His ratings for his prostate condition and major depressive disorder are "disabilities resulting from common etiology" considered to be a single disability ratable at 60 percent. 4. Effective January 19, 2007, the combined effects of the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 5. A February 2002 rating decision which denied entitlement to a rating in excess of 20 percent for the Veteran's service-connected status post radical suprapubic prostatectomy, adenocarcinoma of prostate, implicitly denied entitlement to a TDIU. The Veteran was notified of this decision in June 2004, and he did not appeal the decision or submit new and material evidence within one year of such notice. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for status post radical suprapubic prostatectomy, adenocarcinoma of prostate, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115(b), Diagnostic Code (DC) 7528-7527 (2017). 2. The criteria for an earlier effective date of January 19, 2007, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2017). 3. The February 2002 rating decision which denied entitlement to an increased rating for status post radical suprapubic prostatectomy, adenocarcinoma of prostate, and implicitly denied entitlement to a TDIU is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Prostate Condition The Veteran contends that he is entitled to a disability rating in excess of 40 percent for his service-connected prostate condition, characterized as status post radical suprapubic prostatectomy, adenocarcinoma of prostate. For the following reasons, the Board finds that an increased rating is not warranted. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's symptoms are rated under DC 7528-7527. See 38 C.F.R. § 4.115(b). DC 7528 provides that an initial rating of 100 percent shall be assigned for the first six months after the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure. If at the end of that period there has been no local recurrence or metastasis, the RO must rate residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. DC 7527 applies to prostate gland injuries, infections, hypertrophy, and postoperative residuals, and likewise directs VA to rate such disability as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Here, the Veteran was diagnosed with prostate cancer in 1996 and underwent a prostatectomy in November 1996. A 100-percent rating was assigned, effective from November 7, 1996 to March 1, 1997. He was subsequently assigned a 20-percent rating from March 1, 1997, to January 18, 2007, and a 40-percent rating thereafter. The record reflects no evidence of recurrence of prostate cancer. Therefore, the Veteran's prostate condition is rated on residuals. The predominant symptoms pertaining to the Veteran's prostate condition are most similar to those in the criteria for voiding dysfunction. See 38 C.F.R. § 4.20 (authorizing the rating of a condition according to the requirements of an analogous condition). There is no indication in the record that the Veteran experiences renal dysfunction. Section 4.115(a) states that voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. With regard to urine leakage, a 40-percent rating is assigned for urine leakage, urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials that must be changed two to four times per day. A 60-percent rating is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115(a). Notably, no rating higher than 40 percent is available for either obstructed voiding or urinary tract infection. Thus, these are not addressed, as the Veteran is already rated at 40 percent for his disability. The Veteran filed the instant claim for an increased rating in January 2007. In the year prior, VA treatment notes reflect that he was followed for prostate cancer in remission; however, no specific findings regarding the frequency or severity of voiding dysfunction were noted. In August 2007, the Veteran underwent a VA genitourinary examination. He reported nocturia and post-void dribbling but denied frequency, urgency, hesitancy, double voiding, or interrupted voiding. He endorsed mild stress incontinence with the use of approximately three diapers per day. No recent urinary tract infections or kidney trouble was noted. In terms of treatment, no catheterizations, dilations, or drainage procedures were noted. The examiner indicated that the Veteran had to wear diapers when leaving his house and that his urinary frequency affected his daily activities, as he required constant knowledge of where there was a restroom. In his August 2008 NOD, the Veteran reported that his prostate residuals included urinary incontinence and erectile dysfunction. (The Veteran is in receipt of service connection for loss of erectile power as well as special monthly compensation on account of loss of use of a creative organ, pursuant to 38 U.S.C. § 1114(k).) In September 2008, the Veteran underwent a VA genitourinary examination, during which he reported residual symptoms of urinary incontinence but denied other residuals. Continual urine leakage was noted; the examiner indicated that the Veteran required absorbent material that must be changed two to four times per day. No history of recurrent urinary tract infection, obstructed voiding, or renal dysfunction or failure was noted. In March 2009, the Veteran submitted a letter from his private physician indicating that the Veteran's prostate residuals were getting worse. The physician noted, inter alia, that the Veteran required wearing absorbent materials that needed to be changed approximately twice daily and more than three to four times at night. In February 2017, the Veteran underwent another VA genitourinary examination. He reported that since his last VA examination his condition had remained the same. He denied any further treatment for prostate cancer, and indicated that he continued to have urinary incontinence and erectile dysfunction. The examiner indicated that the Veteran had a voiding dysfunction causing urine leakage which required absorbent materials which must be changed two to four times per day, but which did not require the use of an appliance. Increased urinary frequency was also noted. No signs or symptoms of obstructed voiding or urinary tract or kidney infection were noted. No other residual conditions or complications due to prostate cancer were noted. There was no evidence of renal dysfunction. Having reviewed the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted. In short, the preponderance of the lay and medical evidence demonstrates that the Veteran's voiding dysfunction is manifested by urinary leakage requiring the changing of absorbent materials no more than four times per day. Moreover, there is no evidence that the Veteran requires the use of an appliance due to his voiding dysfunction. The Board acknowledges that the March 2009 letter from the Veteran's private physician appears to support a higher rating. However, that letter is outweighed by the three VA examination reports of record, coupled with the Veteran's lay reports as noted in the examination reports, indicating that he requires the changing of absorbent materials no more than four times per day. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the criteria for a 60-percent rating have not been met at any point during the appeal period. See 38 C.F.R. § 4.115(b). For the aforementioned reasons, the Board finds that the Veteran's current 40-percent rating adequately compensates him for his prostate cancer residuals. The weight of the evidence is against entitlement to an increased rating. Earlier Effective Date for TDIU The Veteran contends that he is entitled to an effective date earlier than August 20, 2008 for the grant of a TDIU. As an initial matter, the Board finds that an earlier effective date of January 19, 2007, is warranted. TDIU will be awarded when a Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a). To qualify for a TDIU on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id. The Board notes that for purposes of determining one 60-percent disability or one 40-percent disability in ascertaining entitlement to TDIU on a schedular basis, disabilities resulting from (in pertinent part) a common etiology or a single accident will be considered as one disability. Id. at (a)(2). The central inquiry in determining entitlement to a 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). In cases involving a claim for higher compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if the claim is received within one year from that date; otherwise, the effective date is the date the claim is received. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). With respect to informal claims, the Board is aware that this case predates the changes to 38 C.F.R. § 3.155, and therefore, the older version of the regulation applies. Under the former § 3.155, any communication or action indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. The Veteran is currently in receipt of a TDIU effective August 20, 2008, pursuant to a February 2009 rating decision. In that decision, the RO determined that the Veteran's service-connected psychiatric and genitourinary disabilities resulted in "significant interference" in his employability. The RO assigned the August 20, 2008 effective date based on a finding that the Veteran submitted his application for a TDIU on that date. Subsequently, however, the Board has determined, in accordance with the Court's March 2014 Memorandum Decision, that the August 2008 application for TDIU, along with accompanying evidence submitted by the Veteran, constituted a timely NOD with an October 2007 rating decision granting a 40-percent rating for the Veteran's prostate condition. See Board Remand (August 2014). Giving deference to the Court, that rating decision stemmed from a claim for an increased rating received by VA on January 19, 2007. See also July 2012 JMR at 2 (the parties agreed that the beginning of the appeal period for the August 2008 decision was the claim filed in January 2007). In light of the above, the Veteran's application for a TDIU predates the current effective date of August 20, 2008. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). At present, January 19, 2007 is the earliest date the Veteran is eligible for a TDIU on a schedular basis. Effective on that date, the Veteran was in receipt of service connection for status post radical suprapubic prostatectomy, adenocarcinoma of prostate (rated as 40-percent disability); major depressive disorder, recurrent, severe, without psychotic features associated with status post radical suprapubic prostatectomy, adenocarcinoma of prostate (rated as 30-percent disabling); and loss of erectile power associated with status post radical suprapubic prostatectomy, adenocarcinoma of prostate (rated as noncompensable). The Board notes that the evaluations for the Veteran's prostate condition and major depressive disorder constitute "disabilities resulting from common etiology" considered to be a single disability ratable at 60 percent. As such, the Veteran meets the schedular criteria for a TDIU as of January 19, 2007. See 38 C.F.R. § 4.16(a). The last remaining question is whether the record establishes that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for the period during which he met the schedular criteria but has not been awarded a TDIU-i.e., from January 19, 2007 to August 20, 2008. The Board has already determined that "the Veteran was unemployable due to his service-connected disabilities, specifically his major depressive disorder and prostate cancer residuals, since at least September 2000." See Board Decision (January 2013) (later vacated). Entitlement to a schedular TDIU is therefore warranted for that entire period. Entitlement to an Effective Date Prior to January 19, 2007 In its January 2013 decision, the Board determined that an "informal claim for TDIU" was raised by the Veteran in 2000, but found that the claim was "inherently denied" by an August 2001 rating decision. Subsequently, in a March 2014 Memorandum Decision, the Court vacated the Board's decision, specifically finding that the August 2001 rating decision did not implicitly deny the claim for a TDIU. In light of the Court's decision, the Board must address whether the Veteran's October 2000 informal claim for a TDIU remains pending. A claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (citing 38 C.F.R. § 3.160(c)); see also Cogburn v. Shinseki, 24 Vet. App. 205, 2010 (2010). However, "the 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams, 568 F.3d at 961. "The implicit denial rule is, at bottom, a notice provision." Id. at 965. Significantly, the Court has noted that, "[i]t is reasonable to say that an appellant who receives a disability rating that is less than 100 [percent] has notice of how his conditions have been rated and has the opportunity to appeal the rating decision. Even if he does not have a clear understanding of TDIU, he does have a clear statement of which disability is being rated and the fact that [VA] has declared it to be less than 100 [percent] disabling." Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007); Locklear v. Shinseki, 24 Vet. App. 311, 316 (2011). The Court has set forth four factors that are to be taken into consideration when applying the implicit denial rule. See Cogburn, 24 Vet. App. 205. They are: (1) relatedness of claims; (2) specificity of adjudication; (3) timing of claims; and (4) representation. Id. at 212-213. A review of the record reveals the following. In October 2000, the Veteran submitted a statement requesting that he be "reevaluated for the purpose of increasing my disability compensation." As noted above, this statement has been interpreted as an informal claim for TDIU. In July 2001, he submitted another statement requesting to be "reevaluated for my service connection condition or conditions," to include "malignant growth genitourinary 20% SC." In a February 2002 rating decision, the RO denied entitlement to a rating in excess of 20 percent for that condition. Notice of the decision was mailed to the Veteran but was returned as undeliverable. In June 2004, the RO acknowledged that there had been a "mistake" and re-mailed notice of the February 2002 decision to the Veteran's correct address. The Veteran did not express disagreement with the February 2002 decision or submit new and material evidence within one year of the June 2004 notice. Hence, the February 2002 rating decision became final. See 38 U.S.C. § 7105(c). Based on the evidence of record, the Board finds that the final, unappealed February 2002 rating decision implicitly denied the Veteran's October 2000 informal claim for TDIU. Regarding the first Cogburn factor, the nature of an application for TDIU is that it is part and parcel of a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the October 2000 informal TDIU claim and the July 2001 claim for an increased rating are highly related. Notably, this is not a situation where the increased rating and TDIU claims were explicitly bifurcated into separate adjudications. See Locklear, 24 Vet. App. at 316 (noting that once a claimant sees "a part of a claim broken out for separate adjudication, a reasonable person would expect to see a specific decision on the part that was separated, or at least some specific indication that the separated part was adjudicated"). Thus, the Board finds that the first factor of the Cogburn test weighs heavily in favor of finding that the claim for a TDIU was implicitly denied. As to the second Cogburn factor, whether a reasonable person could infer that the October 2000 informal TDIU claim was denied by the February 2002 rating decision, the Board reiterates that "[i]t is reasonable to say that an appellant who receives a disability rating that is less than 100 [percent] has notice of how his conditions have been rated and has the opportunity to appeal the rating decision." See Ingram, 21 Vet. App. at 238; Locklear, 24 Vet. App. at 316. In this case, the February 2002 decision described the symptoms associated with the Veteran's prostate condition and determined that a rating in excess of 20 percent was not warranted. The RO considered all the evidence in rendering this decision, including the Veteran's employment status, and provided a clear statement that a total schedular rating was not warranted. As such, the Board finds that the second Cogburn factor weighs in favor of finding that TDIU was implicitly denied. As for the third Cogburn factor, the timing of the claims, the Board notes that the informal claim for a TDIU was filed in October 2000 and the claim for an increased rating for the Veteran's prostate cancer was received in July 2001, less than a year later. The Court has noted that the implicit denial rule is not limited to situations in which the veteran files multiple claims in single application. See Adams, 568 F.3d at 964. Here, given the proximity of the claims, the Board finds that the timing factor weighs in favor of finding that TDIU was implicitly denied. Finally, with regard to the fourth Cogburn factor, the record shows that the Veteran was pro se at the time he received notice of the February 2002 rating decision. While this factor certainly weighs against a finding of implicit denial, the Board nonetheless notes that even if the Veteran did not have a clear understanding of TDIU, it is reasonable to say that he, in receiving less than a 100-percent rating for his prostate condition, had notice of how his condition had been rated and had the opportunity to appeal the decision. A Veteran's ignorance of a particular reason for the denial of a total disability rating does not preclude him from understanding that an appealable decision has been made concerning his claim. See Ingram, 20 Vet. App. 156. In sum, the Board finds that the February 2002 rating decision denying an increased rating for the Veteran's prostate condition implicitly denied entitlement to a TDIU. The Veteran did not appeal within one year of being notified of the decision, nor did he submit new and material evidence within the one-year period. Accordingly, the decision is final. The Veteran did not have a pending, unadjudicated claim for TDIU, and entitlement to an effective date prior to January 19, 2007 for the assignment of a TDIU is not warranted. ORDER Entitlement to a disability rating in excess of 40 percent for status post radical suprapubic prostatectomy, adenocarcinoma of prostate, is denied. Entitlement to an effective date of January 19, 2007 for the award of a TDIU is granted. Entitlement to an effective date earlier than January 19, 2007, for the award of a TDIU is denied. ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs