Citation Nr: 1800690 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-27 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial compensable rating for prostatectomy scars. 2. Entitlement to a rating in excess of 40 percent for prostate cancer residuals from June 1, 2016. 3. Entitlement to a total rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1961 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's prostatectomy scars are not painful or unstable, and do not cause any other disabling effects. 2. From June 1, 2016, the Veteran's prostate cancer residuals results in his wearing absorbent materials that must be changed more than four times per day. 3. The Veteran is not unable to secure or follow a substantially gainful occupation solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for prostatectomy scars are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7804, 7805 (2017). 2. The criteria for a 60 percent rating for prostate cancer residuals are met from June 1, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7528 (2017). 3. The criteria for TDIU are not met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles for Rating Disabilities Disability ratings are determined by applying a schedule of ratings (Rating Schedule) that is based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 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 a veteran 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Assignment of "staged" ratings is appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria, Facts & Analysis - Scar The Veteran seeks a compensable rating for his scar resulting from his prostatectomy. See, e.g., June 2015 Notice of Disagreement. The Veteran's scar is rated under 38 C.F.R. § 4.118, DC 7805, which contemplates other effects of scars not contemplated under the other DCs for rating scars, or DCs 7800, 7801, 7202 and 7804, and instructs to rate such effects under an appropriate diagnostic code. In this regard, the Board notes that DCs 7800-7802 are inapplicable, as the Veteran's scars do not involve his head, face or neck, are not deep, and are not greater than 144 square inches (929 sq. cm), and he does not assert otherwise. There is no DC 7803, and DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DCs 7800-7805. In the present case, the Veteran has had numerous VA examinations for his prostate cancer as well as one for the scar specifically. The May 2015 VA prostate cancer examination reflects the Veteran had scars related to prostate cancer surgery, but they were not painful or unstable or greater than 39 square centimeters (cm). A May 2016 VA scars examination report reflects the Veteran had two scars related to the prostate cancer surgery; both were laparoscopic incisional scars. The first scar was 0.8 cm and linear and the second was 0.3 cm and linear; neither scar was painful or unstable or disfiguring. The provider opined that there was no residual disability related to the scars. The May 2016 VA prostate cancer examination also reflects the Veteran's prostate cancer surgery scars were neither painful nor unstable, and were not greater than 39 square cm. The competent evidence of record does not reflect, and neither the Veteran nor his attorney asserts, any residual effects of his prostatectomy scars. Accordingly, the claim for an increased evaluation must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating Criteria, Facts & Analysis - Prostate Cancer Residuals The Veteran's service-connected prostate cancer residuals are currently rated at 40 percent from June 1, 2016 until March 4, 2017; thereafter, the disability is rated at 60 percent. The Veteran contends that he was entitled to the 60 percent rating since on June 1, 2016. See March 2016 Notice of Disagreement. Affording the Veteran any benefit of the doubt, the Board agrees. The residual effects of the Veteran's prostate cancer are rated under DC 7528 which states that a 100 percent rating may be assigned for malignant neoplasms of the genitourinary system. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, the disorder should be rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115(b), Diagnostic Code 7528. Only the predominant area of dysfunction shall be considered for rating purposes. A maximum 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. Id. Here, there is conflicting evidence regarding the Veteran's voiding dysfunction. May 2015 VA examiner noted the Veteran had voiding dysfunction and urine leakage which required absorbent materials that needed to be changed less than twice per day. There was no appliance usage, no urinary frequency, no obstructed voiding, and no recurrent urinary track or kidney infections. The examiner ultimately remarked that the Veteran's prostate cancer was in remission with the only residual disability being mild incontinence. In a March 2016 statement, the Veteran's spouse indicated that the Veteran minimized his urinary problems during the VA examination. Although his spouse attempted to correct the information, the examiner's report reflected the Veteran's recollections. The Veteran's spouse further reported that the Veteran's loss of urinary control required absorbent materials which needed to be changed five or more times a day. The Veteran had another VA prostate cancer residuals examination in May 2016 that reflects the Veteran's disability required the use of absorbent materials that needed to be changed two to four times a day. Later in May 2016, the Veteran submitted a private disability benefit questionnaire (DBQ) in support of his claim. The provider stated the Veteran had mild to moderate urinary incontinence which required the use of absorbent material that must be changed two to four times per day. The Veteran had another VA prostate cancer residuals examination in March 2017, noting use of absorbent materials that needed to be changed five to six times a day. The examiner further noted that the Veteran has had Alzheimer's disease for five years and his spouse was very definite on the number of absorbent pads used during a 24 hour period. The examiner noted that the Veteran himself seemed to be confused about this issue, though his spouse was not. The Veteran's spouse has consistently asserted that his absorbent materials must be changed five to six times per day over the appeal period. The Board has no reason to doubt her credibility. Given the Veteran's cognitive decline due to his non-service-connected dementia, the Board affords her contentions more weight than the Veteran's. The Board observes there is additional contradictory evidence, including the May 2016 private DBQ and the May 2016 VA examination report. Nevertheless, after applying the benefit of the doubt doctrine, the Board finds that the evidence is at least in equipoise as to whether a 60 percent rating is warranted from June 1, 2016. Facts & Analysis - TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's currently-assigned disability ratings meet the criteria for consideration of TDIU on a schedular basis. VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran's representative asserts that due to his prostate cancer residuals (urinary incontinence) and diabetes mellitus, the Veteran is unable to work. The representative further states "there are very few conceivable occupations that would enable the Veteran to be employable." See August 2017 Statement. The Veteran is currently service-connected for prostate cancer residuals at 60 percent disabling; diabetes mellitus at 20 percent disabling; and prostatectomy scars at zero percent disabling. He meets the criteria for a schedular TDIU. 38 C.F.R. § 4.16(a). The Veteran's formal claim for TDIU dated in May 2016 reflects that he completed high school and worked from 1987 to 2011 in a desk job at a computer. His diabetes mellitus disability is managed solely with restricted diet and oral hypoglycemic agents. There is no regulation of activities due to diabetes mellitus, no hospitalizations due to diabetes mellitus, and no complications of diabetes mellitus. See March 2017 VA examination report. The March 2017 examiner opined that the Veteran's diabetes mellitus did not impact his ability to work. The evidence also shows that the Veteran's prostate cancer residuals are manifested by moderate urinary incontinence with the use of absorbent materials. The Veteran has received three VA examinations during the appeal period related to his prostate cancer residuals. Each examiner has opined that this disability does not impact his ability to work. The private DBQ received in May 2016 indicates the Veteran's incontinence would impact the ability to work, although the precise impact on his ability to work was not described. The Board acknowledges that the Veteran's urinary incontinence would negatively impact his ability to work, in that he would need frequent restroom breaks; although certainly inconvenient, having to take more frequent restroom breaks does not equate to an inability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. Considerable industrial impairment due to the Veteran's prostate cancer residuals is already contemplated in the 60 percent rating currently assigned. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Considering only his service-connected disabilities, the preponderance of the evidence reflects that the Veteran could maintain a sedentary job that allowed frequent breaks to change his absorbent pads, which is consistent with his employment experience and qualifications in sedentary employment. The Board acknowledges the Veteran has other circumstances and medical conditions that impact his employability at this time, namely advanced age and Alzheimer's disease, but his Alzheimer's disease is not service-connected and neither his Alzheimer's nor his age can support an award of a TDIU. 38 C.F.R. §§ 4.16, 4.19. As such, the Board finds that the criteria for a TDIU are not met. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Asserted Deficiencies The Veteran's representative has submitted numerous correspondences that contain approximately seven pages of boilerplate language that is not specific to the Veteran's appeal. See, e.g., September 2016 addendum to Notice of Disagreement. Such vague, unspecific assertions of general due process errors do not amount to a specific procedural argument in this case and thus need not be addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board). ORDER Entitlement to an initial compensable rating for prostatectomy scars is denied. Entitlement to 60 percent rating for prostate cancer residuals is granted from June 1, 2016. Entitlement to a TDIU is denied. ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs