Citation Nr: 1803200 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 491 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating in excess of 60 percent for the residuals of prostate cancer. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Michael Viterna, Attorney ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the RO in St. Petersburg, Florida. In the March 2014 substantive appeal (on a VA Form 9), the Veteran requested a videoconference hearing at the local RO before a Veterans Law Judge sitting in Washington, DC. In correspondence received in November 2015, the Veteran withdrew the hearing request. As the request is deemed withdrawn, the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2017). FINDINGS OF FACT 1. For the entire rating period on appeal from January 5, 2011, the service-connected residuals of prostate cancer have been manifested by urinary leakage requiring the use of absorbent material that must be changed more than four times per day, with no local recurrence of cancer or associated metastasis. 2. The Veteran is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for the residuals of prostate cancer have not been met or more nearly approximated for any period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.115a, 4.115b Diagnostic Code 7528 (2017). 2. The criteria for TDIU have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In March 2011, VA issued the Veteran a VCAA notice which informed of the evidence generally needed to support a TDIU and an increased disability rating, what actions needed to be undertaken, and how VA would assist in developing the claim. The notice was issued to the Veteran prior to the July 2011 rating decision from which the instant appeal arises; therefore, there was no defect with respect to the timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004 Regarding the duty to assist in this case, the Veteran received VA examinations in July 2011 and July 2015. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that the VA examiners reviewed the record, conducted an in-person examination, and rendered the requested opinions and rationale. All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Increased Rating for Prostate Cancer Residuals 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. § 1155; 38 C.F.R., Part 4 (2017). 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 (2017). 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 veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends generally that the service-connected prostate cancer residuals have been manifested by more severe symptoms and impairment than contemplated by the 60 percent disability ratings assigned based on the severity of voiding dysfunction, including the use of absorbent materials. See August 2011 statement. The Board notes that the prostate cancer residuals increased rating issue on appeal arose from a January 5, 2011 claim for TDIU. For the entire rating period on appeal from January 5, 2011, the residuals of prostate cancer have been rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and 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) (2017). If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. As an initial matter, the Board finds that the Veteran was treated for prostate cancer in approximately October 2007. See July 2011 VA examination report. The Veteran does not assert, and the evidence does not otherwise show, that there has been a local reoccurrence or metastasis; therefore, there is no basis for a 100 percent disability rating under Diagnostic Code 7528. 38 C.F.R. § 4.115b. Similarly, the Veteran has emphasized voiding dysfunction symptoms and the evidence of record in this case does not reflect that renal dysfunction is the predominant residual symptom; therefore, a rating based on renal dysfunction is not warranted because (as discussed in more detail below) the weight of the evidence is against finding that renal dysfunction is the predominant residual symptom of the Veteran's prostate cancer. See July 2011 VA examination report; see also July 2015 VA examination report. Voiding dysfunction is to be rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is assigned when the wearing of absorbent materials that must be changed less than two times per day is required; a 40 percent rating is assigned when the wearing of absorbent materials that must be changed two to four times per day is required; and a 60 percent rating is assigned when the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is required. Urinary frequency is rated at 10 percent disabling with daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is assigned for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is assigned for a daytime voiding interval less than one hour, or; awakening to void five or more times per night. Obstructed voiding warrants a maximum schedular rating of 30 percent for urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is assigned for less severe symptoms. 38 C.F.R. § 4.115a. In addition to the rating criteria for voiding dysfunction discussed above, Diagnostic Code 7527 - for prostate gland injuries, infections, hypertrophy, and postoperative residuals - allows for a rating based on urinary tract infections, if those symptoms predominate. In this case, however, there is no indication that the service-connected prostate cancer residuals have manifested a predominant symptom of urinary tract infections; therefore, there is no basis for assigning a disability rating for residuals of prostate cancer under Diagnostic Code 7527. 38 C.F.R. § 4.115b. For the entire rating period on appeal from January 5, 2011, the Veteran has been in receipt of a 60 percent disability rating for the residuals of prostate cancer. After reviewing all the evidence, lay and medical, the Board finds that, for the rating period from January 5, 2011, the service-connected residuals of prostate cancer have been manifested by no local recurrence of cancer or associated metastasis and urinary leakage requiring the use of absorbent material that must be changed more than four times per day. The July 2011 VA examination report reflects nocturia three times per night, daytime voiding intervals of two to three hours, urinary leakage, and use of absorbent material which must be changed more than four times per day. The July 2015 VA examination report reflects daytime voiding intervals of less than one hour and voiding dysfunction requiring the use of absorbent material which must be changed more than four times per day. The assigned 60 percent disability rating is the maximum schedular disability rating under Diagnostic Code 7528 based on voiding dysfunction; therefore, a rating in excess of 60 percent for the period from January 5, 2011 is not available. 38 C.F.R. § 4.115a. While disability ratings in excess of 60 percent are available for prostate cancer residuals when renal dysfunction predominates, voiding dysfunction has been the predominant residual symptom in this case for the entire rating period. Because the preponderance of the evidence is against the appeal for an increased rating in excess of 60 percent for the entire rating period, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.§ 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Consideration The Board has considered whether the Veteran or the record has raised the question of referring an extraschedular rating under 38 C.F.R. § 3.321(b) for any period for prostate cancer residuals. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the issue of an extraschedular rating has not been raised by the Veteran or the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). TDIU Disability ratings are determined by applying the criteria set forth in VA's Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director of Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2014). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). It is noted that competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran seeks a TDIU based on the service-connected prostate cancer residuals rated as 60 percent disabling, tinnitus rated as 10 percent disabling, and erectile dysfunction rated as 0 percent disabling. The service-connected disabilities do not meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU because the combined rating schedular rating is less that 70 percent. In cases of two or more service-connected disabilities, such as this, the combined schedular rating must be 70 percent or more to meet the schedular criteria under 38 C.F.R. § 4.16(a) for consideration of TDIU. The Veteran contends generally that he has been unable to obtain or sustain any form of substantially gainful employment due to service-connected prostate cancer residuals since August 2008. Specifically, at the January 2011 claim the Veteran wrote that "prostate cancer" impacted employability beginning in August 2008. An August 2011 statement reflects that the Veteran wrote he is "very active," and enjoyed boating, swimming, and fishing, and that he had stopped swimming due to absorbent pads needed for the service-connected prostate cancer residuals. A January 2011 statement reflects that the Veteran wrote that frequent urination due to the service-connected prostate cancer residuals had "essentially" rendered him housebound. An August 2011 statement reflects that the Veteran wrote that he was laid off due to frequent urination caused by prostate cancer residuals. In the February 2011 VA Form 21-8940 the Veteran listed four years of college and no additional training. The Veteran's reported work history includes a warrantee clerk 30 hours per week from March 2008 to August 2008, and a service manager 50 hours per week from December 1984 to March 2008. During the July 2011 VA examination, the Veteran reported retiring in 2008 due to age or duration of work. The July 2011 VA examiner opined that the residuals of prostate cancer did not impact light duty or sedentary work. A July 2015 VA examination report reflects the Veteran reported that the symptoms and impairment of the service-connected tinnitus caused his wife to repeat herself. The July 2015 VA examiner opined that the service-connected prostate cancer residuals did not impact the ability to work. The weight of lay and medical evidence shows that the Veteran's service-connected disabilities have not rendered him unable to obtain (secure) or maintain (follow) substantially gainful employment for any period. The degree of occupational impairment caused by the service-connected disabilities has been analyzed in a combined schedular rating of at 60 percent. The July 2011 and July 2015 VA examiners each opined that the service-connected prostate cancer residuals did not impact the ability to work, and, notably, no clinician has opined that the Veteran is unemployable due to service-connected disabilities. The evidence of record shows employment through approximately August 2008 when the Veteran decided to retire due to age or duration as specifically reported by the Veteran at the July 2011 VA examination. The Veteran reported attending four years of college and retiring after approximately 24 years of employment, demonstrating gainful employment though at least March 2008, and indicating a likely ability to work. See February 2011 VA-Form 21-8940. Significantly, numerous VA treatment records also reflect recent employment. A February 2017 VA optometry treatment record reflects the Veteran reported difficulty seeing small labels at work. A November 2016 VA treatment record reflects the Veteran reported working 20 to 30 hours per week and that his schedule was made up one week ahead of time. An October 2016 VA treatment record reflects that Veteran reported current employment that is "fast moving," to include stocking and lifting 30 to 50 pounds. A November 2015 VA treatment record reflects the Veteran reported working 30 to 35 hours per week, which required prolonged standing. The Veteran has provided inconsistent statements throughout the course of the appeal. While the August 2011 statement reflects that the Veteran wrote that he was laid off due to prostate cancer residuals, the July 2011 VA examination report reflects the Veteran reported retiring due to age or duration. Further, while the January 2011 statement reflects that the Veteran reported being "essentially" housebound, the August 2011 statement, submitted a mere six months later, reflects that the Veteran wrote that he is "very active," and enjoys boating, swimming, and fishing. In addition, recent self-reports of employment demonstrate that the Veteran is outside the home for many hours per week as VA treatment records reflect employment from 20 to 35 hours per, which is "fast moving," and includes stocking, lifting 30 to 50 pounds, and prolonged standing. See November 2016, October 2016, and November 2015 VA treatment records. In weighing the statements, the Board finds the Veteran's reports that he is housebound due to the service-connected prostate cancer residuals to be outweighed by the self-reports of being "very active," employed up to 35 hours per week in November 2015, and employed up to 30 hours per week in November 2016. The reported inconsistencies on these ancillary factual questions further indicate that the histories the Veteran has provided for VA disability compensation purposes are at odds with his own, more contemporaneous histories that were previously given for other purposes, including for treatment purposes, and are not credible. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria, including 38 C.F.R. § 4.16(b) referral, for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER An increased disability rating in excess of 60 percent for prostate cancer residuals is denied. A TDIU is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs