Citation Nr: 18143522 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-12 810 DATE: October 19, 2018 ORDER A rating in excess of 40 percent for prostate cancer is denied. A compensable rating for erectile dysfunction is denied. A compensable rating for non-Hodgkin's lymphoma is denied. An effective date prior to January 14, 2016 for the assignment of a 30 percent rating for service-connected paroxysmal atrial fibrillation is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since January 14, 2016 is granted. REMANDED A TDIU prior to January 14, 2016 is remanded. FINDINGS OF FACT 1. The Veteran had active service from July 1967 to July 1969, to include service in the Republic of Vietnam. 2. Throughout the course of the appeal, the Veteran’s residuals of prostate cancer have not been manifested by renal dysfunction or voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. 3. The Veteran’s erectile dysfunction results in loss of erectile power but no physical deformity of the penis. 4. There is no active disease, treatment phase, or uncompensated residual symptoms associated with the Veteran’s non-Hodgkin’s lymphoma. 5. There was no unadjudicated or informal claim pending prior to January 14, 2016 for an increased rating for paroxysmal atrial fibrillation, and the evidence of record did not indicate an increase in the severity of that disability prior to that date. 6. Since January 14, 2016, the Veteran meets the schedular criteria for a TDIU, and his service-connected disabilities have prevented him from security or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 4.3, 4.7, 4.14, 4.115(b), DC 7522 (2017). 3. The criteria for a compensable rating for non-Hodgkin’s lymphoma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.117, DC 7715 (2017). 4. An effective date prior to January 14, 2016 for the award for a 30 percent disability rating for paroxysmal atrial fibrillation is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Prostate Cancer The Veteran seeks an increased rating for his residuals of prostate cancer. The Veteran has generally claimed that his voiding dysfunction warrants a higher rating due to continuous excess voiding and leakage. The Veteran’s prostate cancer has been properly rated under DC 7528, which assigns a 100 percent rating for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate genitourinary dysfunction which predominates. 38 C.F.R. § 4.115b, DC 7528. A note after DC 7528 provides that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent 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). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, Note. In this case, the competent medical evidence, including the November 2014 VA examination, February 2016 addendum opinion, and VA and private clinical records, shows that the Veteran’s prostate cancer is in remission and does not result in renal dysfunction, thus the Board finds that the Veteran’s residuals would be most appropriately rated under the criteria applicable to voiding dysfunction. Voiding dysfunction should be rated as a particular condition of urine leakage, frequency, or obstructed voiding, based on the specific symptoms experienced. 38 C.F.R. § 4.115a. In order to warrant a 60 percent rating, the evidence must show: 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 warrants a 60 percent disability rating. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed two to four times per day warrants a 40 percent disability rating. 38 C.F.R. § 4.115b. Based on the evidence of record, the Board must find that the criteria for a rating in excess of 40 percent have not been met as the evidence does not show voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. In this regard, the November 2014 VA examiner found that the Veteran’s voiding dysfunction did not require the wearing of absorbent material as required for the criteria for the current 40 percent rating. Moreover, while follow up private clinical records did note a voiding dysfunction, they did not indicate that the Veteran required any absorbent materials. Next, in a February 2016 addendum opinion, the VA examiner opined that the Veteran’s urinary frequency was more likely due to benign prostate hypertrophy (BPH) which was less likely than not a residual of his prostate cancer. Finally, the Veteran was afforded a VA examination in May 2016 in accordance with his claim for erectile dysfunction. At that time, the examiner opined that the Veteran had a voiding dysfunction as a result of his BPH, which resulted in daytime voiding intervals of one hour, with two nighttime awakenings, but that it did not cause leakage or the use of an appliance. In sum, the Board finds that the Veteran does not have voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times; thus, a rating in excess of 40 percent is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for residuals of prostate cancer. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Erectile Dysfunction The Veteran seeks a compensable rating for erectile dysfunction. Erectile dysfunction is not specifically listed in the rating schedule. Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. 38 C.F.R. §§ 4.20, 4.27. The most closely aligned criteria for this disability are found in DC 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling. This code also notes that the adjudicator is to review the claim for entitlement to special monthly compensation under 38 C.F.R. § 3.350, which the Veteran has already been awarded. Where, as here, multiple requirements are cited for a specified rating, and these are joined with the conjunctive “and”, the Board concludes that all such requirements must be met in order for the specified rating to be granted. Melson v. Derwinski, 1 Vet. App. 334 (1991) (indicating that use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare and contrast with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board next notes that the evaluation of the same manifestations under multiple diagnostic codes, a practice known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. In the present case, the Veteran has been awarded special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(1) for loss or loss of use of a creative organ. That is, this award is specifically based on the Veteran’s erectile dysfunction, as verified by competent evidence of record. The Veteran has also been awarded a separate disability rating of 40 percent under DC 7528, for urinary incontinence and voiding dysfunction resulting from his service-connected residuals of prostate cancer. Based on the above, resolution of this appeal ultimately turns on whether the Veteran has deformity of his penis in addition to (“with”) the loss of erectile power on account of his erectile dysfunction. Dorland’s Illustrated Medical Dictionary defines deformity as “distortion of any part or general disfigurement of the body; malformation.” Dorland’s Illustrated Medical Dictionary, 30th Ed. 481 (2003). The definition makes no mention of the function of the part in question, but only with its appearance. Furthermore, interpreting “deformity” as used at DC 7522 to include loss of function would have the absurd result of having a diagnostic code that allowed for a rating for loss of function with loss of erectile power. In short, such a definition would render part of the Diagnostic Code superfluous. Furthermore, such a reading would result in the Veteran being in receipt of both special monthly compensation under 38 C.F.R. § 3.350 and schedular compensation under that Code for the same symptom, loss of erectile power. Such an award would be an obvious violation of 38 C.F.R. § 4.14. Review of VA outpatient medical treatment records and examination reports do not indicate the Veteran has any physical deformity of the genitalia resulting from his erectile dysfunction. The Veteran was afforded a VA genitourinary examination in May 2016. According to the examination report, the Veteran experienced erectile dysfunction, urinary incontinence, and voiding dysfunction as the result of his treatment for prostate cancer. No scarring or other pertinent physical findings involving the reproductive organs were noted, however. The Board notes that urinary incontinence and voiding dysfunction were verified on VA examination. Again, however, these symptoms have not been attributed to erectile dysfunction; rather, the competent evidence indicates they are a result of prostate cancer, a disorder for which the Veteran has been granted service connection and a compensable rating specifically based on urinary incontinence and voiding dysfunction. As such, evaluation of the Veteran’s erectile dysfunction based on voiding dysfunction or urinary incontinence is not warranted at the present time. In sum, as the Veteran does not presently have a deformity of the penis aside from loss of power, an increased evaluation is not warranted. In conclusion, the preponderance of the evidence is against the award of a compensable rating under the diagnostic criteria for erectile dysfunction. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Non-Hodgkin’s Lymphoma The Veteran’s non-Hodgkin’s lymphoma is rated under DC 7715, which provides that non-Hodgkin’s lymphoma as an active disease or during a treatment phase is rated at 100 percent. If a veteran is rated at 100 percent under DC 7715, the rating will continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures until six months after discontinuance of such treatment, when a mandatory VA examination will determine the appropriate rating. If there has been no local recurrence or metastasis, the disability will then be rated on any current residual disabilities that are present. 38 C.F.R. § 4.117. The Veteran was diagnosed with non-Hodgkin’s lymphoma in 2006. He underwent eight rounds of chemotherapy treatment that was completed in the same year. There is no evidence showing that the Veteran underwent radiation therapy. Subsequent medical records show that the disease has remained in remission since that time. At the Veteran’s May 2016 VA examination, it was noted that the Veteran underwent eight rounds of chemotherapy, and continued following with hematology since that time. Per the Veteran’s assertions, his labs remained stable since the completion of that treatment, and his non-Hodgkin’s lymphoma remained in remission. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a compensable evaluation. Even though the Veteran underwent chemotherapy treatment for his non-Hodgkin’s lymphoma, he is not entitled to a 100 percent rating at any point during the period on appeal, because the Veteran filed his claim for an increased rating after his disability went into remission. There has been no suggestion that the cancer has recurred or is no longer in remission. Thus, entitlement to a compensable evaluation is not warranted. Effective Date Claim The Veteran seeks an effective date prior to January 14, 2016, for the award of a 30 percent rating for his service-connected paroxysmal atrial fibrillation. Generally, the assignment of effective dates is governed by 38 U.S.C. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. An exception to that general rule applies under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that circumstance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998). The term “increase” as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to a higher disability level. Hazan v. Gober, 10 Vet. App. 511 (1997). In general, “date of receipt” means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A “claim” means 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). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, the formal claim will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). A report of an examination or hospitalization which meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(a). Under 38 C.F.R. § 3.157(b), once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by the VA will be accepted as informal claim for increased benefits for an informal claim to reopen. Furthermore, these provisions apply only when such reports relate to examinations or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b)(1). In the present case, the RO awarded the Veteran a 30 percent rating effective from January 14, 2016, as that was considered the date of receipt of his claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU). The Veteran has alleged that prior to January 14, 2016 VA his disability supported the award of a 30 percent rating for his atrial fibrillation. The Veteran has been granted service connection under DC 7010 for supraventricular arrhythmias. An initial rating of 10 percent was assigned, effective March 14, 2007. This disability rating was later increased to 30 percent, effective January 14, 2016. Under DC 7010, a 10 percent rating is warranted where there is permanent atrial fibrillation or; one to four episodes per year of paroxysmal atrial fibrillation, or other supraventricular tachycardia documented by ECG or Holter monitor. A 30 percent rating is warranted for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. Review of the record confirms that the Veteran underwent VA heart examinations in May 2007 and May 2016. In May 2007, he was found to have recurrent atrial fibrillation and a 10 percent rating was assigned. VA treatment notes from that time through October 2014 revealed stable paroxysmal atrial fibrillation. At a May 2016 VA examination, he was found to have more than four episodes of paroxysmal atrial fibrillation in the preceding year, and a 30 percent rating was assigned from January 14, 2016, the date that the Veteran’s TDIU claim was received by VA. Upon review of the totality of the record, the Board finds the preponderance of the evidence to be against an effective date prior to January 14, 2016 for the award of a 30 percent rating for the Veteran’s paroxysmal atrial fibrillation. The evidence of record does not for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year, documented by ECG or Holter monitor, as would support a 30 percent disability rating prior to that date. The VA and private treatment records associated with the claims file did not reveal ECG or Holter monitor readings which would support a 30 percent rating prior to that date. In fact, his paroxysmal atrial fibrillation was constantly noted to be stable in VA treatment records. Additionally, the Veteran’s claim for increase was note received by VA until January 14, 2016. As such, even if the evidence of record had indicated a worsening prior to that date, the later of the two dates would be the proper effective date. Additionally, the evidence also does not indicate the existence of a prior unadjudicated claim for an increased rating for his paroxysmal atrial fibrillation. Thus, the award of an effective date prior to January 14, 2016, for the award of a 30 percent rating for the Veteran’s service-connected paroxysmal atrial fibrillation must be denied. TDIU since January 14, 2016 Pursuant to applicable law, a TDIU may be assigned where the schedular rating is less than total 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. 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 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 U.S.C. § 1155; 38 C.F.R. § 4.16(a). Since January 14, 2016, the Veteran has been service-connected for four disabilities: prostate cancer, rated at 40 percent; paroxysmal atrial fibrillation, rated at 30 percent; and non-Hodgkin’s lymphoma and erectile dysfunction, each rated as noncompensably disabling. The Veteran’s combined rating is 60 percent. Though the Veteran has multiple disabilities with a combined rating of less than 70 percent, there are circumstances in which multiple disabilities can be combined to be considered one disability for TDIU purposes. Included among those are instances in which disabilities have a common etiology. In this case, the Veteran has two primary disabilities (prostate cancer and non-Hodgkin’s lymphoma) that are considered to be presumptively related to his in-service herbicide agent exposure, and two additional disabilities (paroxysmal atrial fibrillation and erectile dysfunction) which are secondary to that primary disability. Given these facts, for TDIU purposes, the Board considers these disabilities together, and their combined 60 percent rating satisfies the rating required for a single disability. The schedular criteria are met. The remaining question then is whether the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. The Veteran’s representative submitted a medical opinion in support of this contention which, in essence, concluded exactly that. Given the positive opinion, no extended discussion is necessary here. The Board concludes that, since January 14, 2016, the criteria for a TDIU have been met. REASONS FOR REMAND Prior to January 14, 2016, is a different story. As at that time, the Veteran’s combined rating (even when considering all of his disabilities together) is below the required threshold for a TDIU. 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. 38 C.F.R. § 4.16(b). Rating boards are to refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service- connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran has consistently asserted that he has been unemployable for many years, initially due to his prostate cancer, frequent urination, heart disability, and residuals and medications thereof. The RO has not, however, considered or referred the case for extraschedular consideration. Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 38 C.F.R. § 4.16(b) and may only refer the claim to the Director of Compensation for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, this claim must be remanded for such referral. The matter is REMANDED for the following action: 1. The Veteran’s claim should be reviewed and forwarded to the Director of VA’s Compensation Service or Under Secretary for Benefits for consideration of entitlement to a TDIU prior to January 14, 2016 on an extraschedular basis in accordance with 38 C.F.R. § 4.16(b). 2. Following the completion of the above, and any other development deemed necessary, the RO should readjudicate the claim for a TDIU. If the claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an opportunity to respond before the record is returned to the Board for further appellate review. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel