Citation Nr: 1757587 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-14 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to accrued benefits based on evaluation of prostate cancer currently evaluated as 40 percent disabling, to include propriety of the reduction of the rating from 100 percent to 40 percent, effective August 1, 2011. 2. Entitlement to accrued benefits based on service connection for bilateral leg condition, to include as secondary to lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to October 1982. The increased rating matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The service connection matter comes before the Board on appeal from a February 2013 rating decision of the VARO. However, the Veteran submitted the original application for bilateral leg condition in May 2005. The RO sent the Veteran a VCAA notice dated in August 2005 acknowledging the receipt of the claim. In a January 2007 rating decision, the RO deferred the bilateral leg condition. The RO took no action on the Veteran's pending claim until May 2011; therefore, the claim remained pending. See Norris v. West, 12 Vet. App. 413, 422 (1999) (A claim may remain pending in the adjudication process, even for years, if VA fails to act on it in compliance with procedural requirements mandated by law.). In March 2017, the appellant testified before the undersigned Veterans Law Judge in a hearing. The hearing transcript is associated with the record. As to the accrued benefits claim, because the appellant is the Veteran's surviving spouse, because the Veteran had claims pending at the time of his death for service connection for bilateral leg condition and increase rating for prostate cancer, and because the appellant filed her accrued benefits claim within one year after the date of his death, the Board also finds that the scope of the current appeal includes service connection for bilateral leg condition and increased rating for prostate cancer for accrued benefits purposes. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998; also see Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). FINDINGS OF FACT 1. The Veteran had an increased rating claim for prostate cancer and service connection claim for bilateral leg condition pending at the time of his death. 2. The evidence demonstrates that the Veteran's residuals of prostate cancer resulted in urinary incontinence. 3. The evidence demonstrates that the Veteran has a bilateral leg condition that is etiologically related to a disease, injury, or event which occurred in service. CONCLUSIONS OF LAW 1. The criteria for award of an increased rating for prostate cancer, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1155, 5121 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.55, 3.1000 (2017). 2. The criteria for entitlement to service connection for bilateral leg disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated in December 2010 and June 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As a claim for accrued benefits is, by its nature, a claim for past-due and unpaid benefits, it must be adjudicated on the basis of the evidence of record at the relevant time in question, which is the evidence of record at the date of the Veteran's death. Because the Board's review is limited to evidence within that time frame, no reasonable possibility exists that further notice or assistance would aid the appellant in substantiating the claims, and any deficiencies of notice or assistance would be moot. 38 U.S.C. § 5103A (2012); Wensch v. Principi, 15 Vet. App. 362 (2001) (compliance with the duty to notify and assist is not required if no reasonable possibility exists that any notice or assistance would aid the Appellant in substantiating the claim). See 38 U.S.C. § 5103A(a)(2) (2012). No additional notice or assistance is necessary prior to adjudication of the claim. II. Accrued Benefits For situations where the Veteran had a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when he died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 123 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). In May 2005, the Veteran filed a claim for service connection for bilateral leg condition and increased rating for prostate cancer. The Veteran died in January 2012. In February 2012, the Veteran's surviving spouse submitted a claim for dependency and indemnity compensation benefits through VA Form 21-534 and indicated she wished to continue the Veteran's claims for service connection for bilateral leg condition and increased rating for prostate cancer. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.152; 38 C.F.R. § 3.1000(c). The January 2013 notice letter from the RO accepted the appellant's accrued benefits claim and stated it was working on this claim in addition to her other claims. In order for the Appellant to prevail on her claim for accrued benefits, the evidence at the time of the Veteran's death must show that the Veteran was entitled to service connection and increased rating in excess of 40 percent. The record at the time of the Veteran's death contained the Veteran's service treatment records (STRs), military personnel records, and VA treatment and private records. The Board will discuss the evidence in the record at the time of the Veteran's death to determine whether the Veteran would have prevailed on his claim of service connection for bilateral leg condition and increased rating in excess of 40 percent for prostate cancer. III. Prostate Cancer A. Rating Reduction Under 38 C.F.R. § 3.105(e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, the Board does not find that these provisions are applicable in the present case. This is because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ's action was not a "rating reduction," as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). In the present case, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, with respect to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In short, the rating reduction in this case was procedural in nature and by operation of law. The Board only has to determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under Diagnostic Code 7528. Adjudication of the claim currently before the Board essentially involves two questions: whether the discontinuance of the 100 percent rating for the prostate cancer was proper; and, if so, whether the 40 percent rating assigned for this disability following this discontinuance was proper. The January 2007 rating decision had assigned the 100 percent rating based upon the diagnosis of a prostate cancer and consideration of the diagnostic criteria for malignant neoplasms of the genitourinary system. Specifically, a May 2005 statement from Dr. Bennett showed a diagnosis of prostate cancer and was undergoing treatment for the disease. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in May 2005. In a May 2011 rating decision, the RO found that, based upon the December 2010 VA examination, a 40 percent rating for the prostate cancer was warranted. Specifically, the examination report indicated that the Veteran's prostate cancer was asymptomatic, i.e., showed improvement. As a consequence, the AOJ proposed to reduce the rating for the prostate cancer from 100 percent to 40 percent. The Veteran was notified of the AOJ's intent to discontinue the 100 percent rating for his prostate cancer by letter dated in January 2011. The Veteran submitted medical evidence dated July 2010 and earlier documenting his previous treatment and follow up appointments for prostate cancer. He did not request a hearing regarding this issue. Pursuant to 38 C.F.R. § 3.105(e), the AOJ took final action to reduce the 100 percent rating to 40 percent in a May 2011 rating decision. The reduction was made effective beginning August 1, 2011. Based on a review of this procedural history, the Board finds that the RO complied with all of the requirements 38 C.F.R. § 3.105(e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Moreover, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). The Veteran did not assert that these procedural provisions were not followed. Thus, the Board finds that the AOJ appropriately followed the procedural actions to accomplish the discontinuance of the 100 percent rating, which resulted in a reduction of the Veteran's benefits. In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes that there is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 after August 1, 2011. See 38 C.F.R. § 4.7. The Veteran was not receiving treatment, which is the requirement for a 100 percent disability rating. Accordingly, the Board concludes that, as the reduction in rating from 100 percent to 40 percent for prostate cancer was appropriate, the criteria for restoration of the 100 percent rating, from August 1, 2011, are not met. But, the question remains as to whether a higher rating is warranted for residuals of the Veteran's prostate cancer. B. Increased Rating in excess of 40 percent for prostate cancer Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of an initial disability rating, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). The Veteran's service-connected residuals of prostate cancer are currently rated as 40 percent disabling effective August 1, 2011, based on voiding dysfunction. The rating criteria indicate that voiding dysfunction should be rated as urine leakage, urine frequency, or obstructed voiding, whichever is the predominant area of dysfunction. See 38 C.F.R. § 4.115a. In this instance, there is no evidence of any renal dysfunction in the Veteran's medical records or in the Veteran's statements. As such, the issue of renal dysfunction will not be discussed further. Additionally, the Board notes that the maximum rating under urine frequency and obstructed voiding is 40 and 30 percent, respectively. Since the Veteran is currently at 40 percent, urine frequency and obstructed voiding will not be considered. The criteria for voiding dysfunction assigns a maximum 60 percent rating if there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. In a February 2011statement, the Veteran stated that he wore Depends underpants that had to be changed every two hours around the claim. He stated that he still had urinary incontinence and urgency, a lot. See February 2011 Statement in Support of Claim. In March 2017, the appellant testified at a Board hearing. The appellant stated that she was the Veteran's caregiver. She also stated that the Veteran became totally incontinent in 2009. In January 2011, the Veteran submitted private medical records. The records documented the Veteran's encounters with the physician. The examiner noted that the Veteran's current symptoms included, among other things, urgency of urination, urinary frequency, nocturnal enuresis, and urge incontinence. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in January 2011, pages 3-10. In a statement dated June 2011, the Veteran's urologist stated that the Veteran was incontinent and "we have just about exhausted all of our efforts to resolve his incontinence without success." See Medical Treatment Records-Non-Government Facility entered in Caseflow Reader in December 2011. The Board notes that the Veteran and appellant are competent to testify on factual matters of which they have first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). They are competent to provide evidence of observable symptoms, including urinary incontinence and urgency. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran's prostate cancer residuals were manifested by a voiding dysfunction but not a renal dysfunction. The Veteran's voiding dysfunction caused severe urinary incontinence. The Board finds that the Veteran's voiding dysfunction is primarily manifested by urinary incontinence. The Veteran's symptoms were fairly consistent. The Veteran submitted a statement and the appellant's testimony are supported by the medical evidence of record, which notes significant incontinence. Accordingly, the Board agrees with the appellant's assertions that his voiding dysfunction was predominantly productive of an overall disability picture that more nearly approximates that of continual urine leakage and/or urinary incontinence requiring the wearing of absorbent materials which must be changed more than 4 times per day. In sum, the Board finds that the competent evidence of record more nearly approximate the criteria for a higher disability rating of 60 percent for voiding dysfunction under 38 C.F.R. § 4.115b, Diagnostic Code 7529. C. Service Connection for bilateral leg condition A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The appellant contends that the Veteran had neurological manifestations in the lower extremities that are due to his service. See Application for benefits entered in Caseflow Reader in May 2005. The Board notes that the medical record contained a current diagnosis of neurological manifestations in the lower extremities at the time of the Veteran's death. Therefore, the first element under Wallin and Shedden has been met. The second element of secondary service connection requires evidence of a service-connected disability. Here, the Veteran was service connected for lumbosacral strain. Furthermore, as will be discussed below, in the text of a 2007 rating decision, the RO expanded his service-connected disability to include additional lumbar spine disability shown during his most recent VA examination. Thus, the second element under Wallin has been met. Regarding direct service connection, the Board notes, as will be discussed below, that the Veteran complained of leg injuries while he was in service. However, there is no medical evidence linking the Veteran's in-service injuries with his current disability. As such, element three under Shedden has not been met. Therefore, service connection on a direct bases is not warranted. However, the Board finds that the third element under Wallin is met. In February 1961, the Veteran was treated for pain in both legs. See STR entered in Caseflow Reader in August 2014, page 70. In March 1978, the Veteran underwent a periodic physical. It was noted that in 1977, the Veteran experienced cramps in his legs and had continual pain which lasted for a week. He was treated with Tylenol with no recurrence. See id. at 85. In June 1982, the Veteran underwent a Retirement physical. The leg cramps were noted. See id. at 24. In September 1994, the Veteran submitted private medical treatment records. The examiner noted that the Veteran experienced right leg numbness which was an associated symptom of his most recent onset of low back pain. However, the examiner noted that he Veteran did not have radiculation. See Medical Treatment Record-Non-Government Facility entered in Caseflow on September 1994 page 1. In May 2005, the Veteran filed a claim for service connection for left and right leg joint problems. See Statement in Support of Claim entered in Caseflow Reader in May 2005. In November 2006, the Veteran underwent a VA examination to determine the severity of his lumbosacral strain. The examiner noted that the Veteran suffered from spinal pain since 1967. The pain occurred constantly and travelled to his legs. The examiner noted sensory deficits of the Veteran's right upper, lateral, and mid anterior thigh, and also, the left anterior lower thigh. The examiner diagnosed the Veteran with lumbosacral strain with lumbosacral intervertebral disc syndrome (IVDS) involving nerve root L1-L5 and S1 and most likely related to the Sciatic nerve. The Veteran also diagnosed bowel, erectile, and bladder dysfunction, for which the RO granted service connection in 2007 as secondary to his service-connected lumbar spine disability. In that same rating decision, the RO expanded the service-connected lumbar spine disability to include the additional lumbar disability shown during the 2006 VA examination. Based on the evidence of record, the Board finds that the weight of the evidence supports a finding that the Veteran's bilateral leg condition, diagnosed as neurological manifestations in the lower extremities, is etiologically related to a disease, injury, or event in service, to include the Veteran's service-connected lumbosacral strain. As a result, service connection is warranted. ORDER Reduction of a 100 percent rating for prostate cancer was proper; the appeal is denied. A rating in excess of 40 percent for prostate cancer is granted. Entitlement to service connection for a neurological manifestations in the lower extremities as secondary to service-connected lumbar spine disability is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs