Citation Nr: 1807826 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-19 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for erectile dysfunction. 2. Entitlement to a rating in excess of 60 percent for prostate cancer, status post cryotherapy, and history of penile implant, to include whether the reduction in rating from a 100 percent to 60 percent was proper. 3. Entitlement to an effective date earlier than February 21, 2012 for the grant of service connection for erectile dysfunction. 4. Entitlement to an effective date earlier than January 1, 2012 for the grant of a 60 percent rating for prostate cancer, status post cryotherapy, and history of penile implant. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert Sykstus, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from January 1962 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the October 2011 rating decision, the RO reduced the rating for prostate cancer from 100 percent to 40 percent, effective January 1, 2012. In the May 2014 rating decision, service connection was established for erectile dysfunction and a noncompensable rating was assigned effective February 21, 2012. In a May 2014 statement of the case (SOC), the RO granted a 60 percent rating for the Veteran's prostate cancer effective January 1, 2012. Regarding the prostate cancer claim, according to the June 2012 statement, the Veteran requested that his 100 percent rating be reinstated. Given this history, the Board finds that the issue on appeal encompasses both the reduction and entitlement to a higher evaluation. The issue has thus been recharacterized accordingly. The Veteran testified before the undersigned Veterans Law Judge at a hearing in July 2017. A copy of the hearing transcript is of record. In August 2017, the Veteran filed a claim for entitlement to TDIU. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it is part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 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). The issues of entitlement to an initial compensable rating for erectile dysfunction, a rating in excess of 60 percent for prostate cancer, status post cryotherapy, to include whether the reduction in rating from a 100 percent rating to 60 percent was proper, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An effective date for the award of service connection for erectile dysfunction was assigned from February 21, 2012. 2. There is no evidence of any earlier unadjudicated formal or informal claim as to this matter. 3. From January 24, 2001 to December 31, 2011, the preponderance of the evidence shows that the Veteran's disability picture for prostate cancer most nearly approximated a 100 percent rating as a malignant neoplasm of the genitourinary system. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 21, 2012, for the award of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date earlier than January 1, 2012, for the award of a 60 percent rating for prostate cancer have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims in February 2012. Because the appeal for earlier effective date for erectile dysfunction stems from the initial grant of service connection, additional notice was not required in this case. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (2017). As to the appeal for an earlier effective date for the grant of a 60 percent rating for prostate cancer, the Board notes that such an appeal stems from a 38 C.F.R. § 3.105(e) reduction. As such, it arises from an action initiated by the RO. The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements. See 38 C.F.R. § 3.105(e), (i). With regard to the duty to assist, the Veteran's service treatment records, pertinent post-service treatment records, statements, and testimony from the July 2017 Board hearing have been associated with the record. Moreover, the Veteran was afforded VA examination in February 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2012 VA examination is adequate. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran, and no further action is necessary to assist the Veteran in substantiating this claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Earlier Effective Date VA law provides that the effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The Court of Appeal for Veterans Claims (Court) has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). VA regulations also provide that the terms claim and application mean 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) (2017). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Erectile dysfunction The Veteran seeks entitlement to an effective date earlier than the one assigned by the RO in the May 2014 rating decision. Specifically, in the July 2017 Board hearing the Veteran stated that his erectile dysfunction came about when he had his cryotherapy. Based upon the evidence of record, the Board finds that an effective date for the award of service connection for erectile dysfunction earlier than February 21, 2012, is not warranted. There is no evidence of any earlier unadjudicated formal or informal claim specifically seeking service connection for erectile dysfunction nor may the records of the Veteran's VA medical treatment be reasonably construed as seeking service connection for erectile dysfunction. See 38 C.F.R. § 3.157 (2017) (regulation permitting use of medical record as informal claim for benefits applies only to a distinct group of claims where service connection has already been established); see also Lalonde v. West, 12 Vet. App. at 382 (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). The Veteran had not specifically filed a claim for erectile dysfunction prior to June 13, 2012. The Board notes that VA examination report dated in December 2003 indicated that the Veteran had impotence; but also had an implant which was satisfactory. To the extent he was noted to have impotence, however, the Court has held that the mere presence of a disability does not establish intent on the part of a veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). In addition, upon examination in December 2003, there was no penile deformity and erectile power was evident. These statements are not indicative of claim for erectile dysfunction based on penile deformity with loss of erectile power nor may his statements, overall, be reasonably construed as raising a claim for service connection for penile deformity with loss of erectile power. The Board also notes that even if those statements were construed as having been indicative of the Veteran's desire to seek service connection for a penile deformity with loss of erectile power, the claim was "implicitly denied" by subsequent rating decisions. In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit found that where a veteran files more than one claim with the RO at the same time and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The proper remedy under such circumstances is to file a timely notice of disagreement as to the RO's failure to address that claim. The Federal Circuit subsequently held that the "implicit denial rule" established in Deshotel applies where a regional office's decision provides a veteran with reasonable notice that his claim for benefits was denied. It was noted that whether or not the regional office's decision was appealed has no bearing on the reasonableness of the notice afforded by that decision. See Adams v. Shinseki, 568 F.3d 956, 964 (Fed. Cir. 2009). If the Veteran intended his December 2003 statements as a claim for additional compensation due to penile deformity with loss of erectile power, the Board finds he was reasonably notified by the subsequent rating decisions that additional compensation on that basis was denied. It should be noted that the Veteran has already been assigned a separate award of special monthly compensation under 38 C.F.R. § 3.350(a), based on loss of use of a creative organ. However, the medical evidence of record prior to February 21, 2012 did not indicate and the Veteran did not previously contend that he had any erectile dysfunction consistent with penis deformity and loss of erectile power. Therefore, the claim for entitlement to an earlier effective date for the award of service connection for erectile dysfunction rated as penile deformity with loss of erectile power must be denied. The preponderance of the evidence in this case is against the Veteran's claim. Prostate cancer, status post cryotherapy and history of penile implant The Board notes that the Veteran's claim is stated as one for an earlier effective date for a 60 percent rating for prostate cancer prior to January 1, 2012. However, as the Veteran was granted a 100 percent rating for prostate cancer from January 24, 2001 through December 31, 2011, this is the highest rating the Veteran can receive for his condition during this period, and the Board finds no cause to reduce the rating to the Veteran's detriment. Accordingly, the Board finds that the benefit of the doubt doctrine is inapplicable, and the Veteran's claim for entitlement to an earlier effective date than January 1, 2012 for a 60 percent evaluation of residuals of prostate cancer is denied. See 38 C.F.R. § 4.3. ORDER Entitlement to effective date earlier than February 21, 2012 for the grant of service connection for erectile dysfunction is denied. Entitlement to effective date earlier than January 1, 2012 for the grant of a 60 percent rating for prostate cancer, status post cryotherapy, and history of penile implant, is denied. REMAND The Veteran seeks a higher rating for prostate cancer and an initial compensable rating for erectile dysfunction. He was afforded a VA examination in relation to his claims in February 2012. To ensure that the record reflects the current severity of his disabilities, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). After review of the record, however, the Board finds that another examination is warranted to determine the current nature and severity of the Veteran's disabilities. To that end, during his July 2017 hearing, the Veteran reported undergoing another penile implant surgery in March 2017. He further expressed dissatisfaction with the current severity of his disabilities in light of current sequelae to include having an infected penile implant. The Veteran has also described a loss of penile size as an aspect of deformity. See Board hearing trans. p. 9. Regarding the Veteran's prostate cancer, he is currently in receipt of the highest available rating based on impairment caused by voiding dysfunction. Consideration of impairment caused by renal dysfunction could afford the Veteran a rating higher than 60 percent. Specifically, the highest rating under the renal dysfunction criteria is 100 percent. Unfortunately, there are no current findings that properly address whether there is any impairment caused by renal dysfunction. As such, the case must be remanded so that the Veteran can be afforded a comprehensive VA examination. The TDIU claim is deferred because the increased-rating issues and TDIU are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Moreover, the TDIU claim must initially be adjudicated by the AOJ. In addition, it is noted that the Veteran receives current treatment from other medical providers. Specifically, the Veteran submitted additional private treatment records dated through July 2017, noting that he would have a return visit. On remand, an attempt should be made to obtain any outstanding private and VA medical records. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims folder any outstanding VA treatment records that pertain to the Veteran's prostate cancer residuals and erectile dysfunction. 2. Contact the Veteran and request that he provide or authorize the release of any outstanding private treatment records that pertain to treatment for his prostate cancer residuals and erectile dysfunction. 3. Schedule the Veteran for a VA genitourinary examination to determine the current severity of his service connected prostate cancer and erectile dysfunction. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. In accordance with the latest worksheets for rating genitourinary disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disabilities. The VA examiner should specifically describe the severity of any associated voiding dysfunction, urinary frequency, obstructed voiding, and any renal dysfunction associated with the Veteran's prostate cancer. The examiner should also evaluate and discuss the severity of all complications of the Veteran's erectile dysfunction. The examiner should specifically consider whether it is at least as likely as not that the Veteran's residuals of prostate cancer and/or treatment with penile implant resulted in loss of penile size or penile deformity. The examiner should comment on the functional impairment from the service-connected disabilities. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the lay statements and testimony of the Veteran. 4. Thereafter, the AOJ should readjudicate the increased ratings claims on appeal as well as the claim for a TDIU which addresses all evidence associated with the claims file since the last statement of the case. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs