Citation Nr: 18151774 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-00 169A DATE: November 20, 2018 ORDER Reduction of a 100 percent rating for prostate cancer was proper. Entitlement to an increased rating in excess of 60 percent for prostate cancer residuals since July 1, 2014, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to July 1, 2014, is dismissed as moot. Entitlement to TDIU since July 1, 2014, is denied. FINDINGS OF FACT 1. The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 2. The procedural requirements of 38 C.F.R. § 3.105 (e) were properly and appropriately completed in this case. 3. Since July 1, 2014, the Veteran’s prostate cancer residuals have been manifest by requiring the wearing of absorbent materials that must be changed more than four times per day, daytime interval voiding between one and two hours, and nighttime voiding five or more times per night. 4. Prior to July 1, 2014, the Veteran had been granted a 100 percent rating for prostate cancer and the issue of entitlement to TDIU is moot. 5. Since July 1, 2014, the Veteran’s service-connected disabilities have not precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction in the rating for prostate cancer residuals from 100 percent to 20 percent effective July 1, 2014, was proper. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105 (e), 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 2. Since July 1, 2014, the criteria for a rating in excess of 60 percent for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.16, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 3. Prior to July 1, 2014, entitlement to TDIU is moot. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). 4. Since July 1, 2014, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. The Veteran has asserted he is unable to work due to the residuals of his prostate cancer and the Board has characterized the issues on appeal to include a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009) 1. Rating Reduction for Prostate Cancer 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 Agency of Original Jurisdiction (AOJ) 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. 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). 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 must only 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. A February 2013 rating decision assigned 100 percent rating based upon the diagnosis of an active prostate cancer requiring a therapeutic procedure. The rating decision included a notification that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent would continue with a mandatory VA examination at the expiration of six months, and 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). The Veteran underwent a VA examination in October 2013. The examiner reported that the Veteran had undergone a radical robotic prostatectomy and his cancer was in remission. The examiner reported that the Veteran had a resulting voiding dysfunction that required absorbent materials that needed to be changed less than two times per day, and caused daytime voiding between every one and two hours and nighttime voiding three to four times. In an October 2013 rating decision, the AOJ proposed reducing the Veteran's disability rating from 100 percent to 20 percent based on the findings of the October 2013 VA examiner. The Veteran was notified of the AOJ’s intent to discontinue the 100 percent rating for his prostate cancer in a letter dated in October 2013. The Veteran did not submit any additional medical evidence and did not request a hearing regarding this issue. And, in a May 2014 rating decision, pursuant to 38 C.F.R. § 3.105 (e), the AOJ took final action to reduce the 100 percent rating to 20 percent rating, which was made effective July 1, 2014. Based on a review of this procedural history, the Board finds that the AOJ complied with all 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 has not asserted 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. Because the Veteran was no longer receiving surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, 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 July 1, 2014. See 38 C.F.R. § 4.115b; Diagnostic Code 7528. Accordingly, the Board concludes that, as the reduction in rating from 100 percent to 20 percent for prostate cancer was appropriate, the criteria for restoration of the 100 percent rating, from July 1, 2014, are not met. 1. Increased Rating for Prostate Cancer Residuals In May 2014, the Veteran disagreed with the assignment of a 20 percent disability rating for the residuals of his prostate cancer. In a November 2015 rating decision, the AOJ granted the Veteran an increased rating of 60 percent, effective July 1, 2014, the date the Veteran's rating had been reduced from 100 percent to 20 percent. The Veteran’s residuals have been rated under Diagnostic Code 7528. Under Diagnostic Code 7528, 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. 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. Since July 1, 2014, the Veteran has been assigned a 60 percent rating, the highest available, based on the resulting voiding dysfunction. Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. A 60 percent rating is warranted for urine leakage when there is use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. As the Veteran has already been assigned the highest possible rating based on voiding dysfunction, the Board finds that an increased rating in excess of 60 percent based on voiding dysfunction is not warranted. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The Veteran was afforded VA examinations in October 2013, October 2015, and twice in October 2017. Each of the examiners reported that the Veteran had a diagnosis of adenocarcinoma of the prostate in remission. The October 2013 examination report indicated that the Veteran had voiding dysfunction that required absorbent materials that needed to be changed less than two times per day, and caused daytime voiding interval between one and two hours and nighttime voiding three to four times. Thereafter, each of the VA examiners reported that the Veteran's voiding dysfunction resulted in the use of absorbent materials that needed to be changed more than four times per day, daytime voiding interval of less than one hour, and nighttime voiding five times or more. None of the VA examiners found that the Veteran had a history of recurrent symptomatic urinary tract or kidney infections. Accordingly, the Veteran’s voiding dysfunction is the predominant dysfunction, and any residuals of prostate cancer that are present must be rated according to the rating criteria for voiding dysfunctions. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. A rating higher than 60 percent is not available under the evaluations for voiding dysfunctions. 38 C.F.R. § 4.115a, Voiding Dysfunctions. Further, there is no competent lay or medical evidence that the Veteran has renal dysfunction characterized by any of the symptomatology corresponding with 80 percent or 100 percent ratings for renal failure. See 38 C.F.R. § 4.115a, Renal Dysfunction. As such, the preponderance of the evidence is against a higher rating under the rating criteria for renal dysfunction. Finally, there is no competent lay or medical evidence showing that the Veteran has active neoplasms of the genitourinary system and a 100 percent rating for malignant neoplasms of the genitourinary system under Diagnostic Code 7528 is not warranted. All potentially applicable diagnostic codes have been considered, and there is no basis on which to assign an evaluation in excess of 60 percent for the Veteran’s residuals of prostate cancer. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). A total disability rating for compensation 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating for compensation 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable due to service-connected disabilities, VA shall submit the case to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). In his March 2016 Application For Increased Compensation Based On Unemployability, the Veteran asserted that his service-connected PTSD and prostate cancer prevented him from securing or following any substantially gainful employment. The Veteran asserted that he became too disabled to work on June 21, 2013. 2. TDIU prior to July 1, 2014 From September 13, 2012, until June 30, 2014, the Veteran had been granted a schedular rating of 100 percent for prostate cancer. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Such a scenario is not present here. To obtain SMC for the relevant period, the evidence of record would have to establish that the Veteran’s remaining service-connected disabilities entitled him to TDIU. However, during this period his remaining service-connected disabilities – PTSD and erectile dysfunction – were not rated at 60 percent or more. Moreover, the Veteran’s has not asserted that his PTSD alone prevented him from obtaining or sustaining any kind of employment. Thus, the preponderance of evidence in the record does not support a finding that the Veteran’s remaining service-connected disability alone prevented him from obtaining or sustaining any kind of employment and referral to the Director of the Compensation Service for extraschedular consideration is not required under 38 C.F.R. § 4.16(b). Therefore, the issue of entitlement to TDIU prior to July 1, 2014, is moot. 3. TDIU since July 1, 2014 Beginning July 1, 2014, the Veteran’s total combined disability rating has been 80 percent, his service-connected PTSD are rated at 50 percent and his prostate cancer residuals are rated at 60 percent. Therefore, the Veteran has met the threshold requirement for a schedular TDIU for the period on appeal, but the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). After a review of the record, the Board finds that entitlement to TDIU for the period on appeal is not warranted. As noted above, the Veteran contends that his service-connected PTSD and prostate cancer prevented him from securing or following any substantially gainful employment. The Veteran asserted that he became too disabled to work, and last worked, on June 21, 2013. According to his claim, he had held his job since January 7, 1992. The Veteran's VA treatment records indicated that he was employed as an accountant. See, e.g., April 2013 VA treatment records. In an April 2017 VA treatment record, the Veteran reported that he had a bachelor’s degree in accounting. A June 2013 letter from the Veteran's former employer indicated that the Veteran was terminated because he had exhausted all his sick, vacation, and Family and Medical Leave Act leave. At that time, the Veteran was in receipt of a 100 percent schedular rating due to active prostate cancer. As discussed above, an October 2013 VA examiner reported that the Veteran had undergone a radical robotic prostatectomy and his prostate cancer was in remission. The examiner indicated that the Veteran had a resulting voiding dysfunction, but opined that the Veteran's disability had no impact on the Veteran's ability to work. Likewise, an October 2015 VA examiner reported that the Veteran’s voiding dysfunction residuals had no impact on his ability to work. An August 2017 VA examiner opined that the symptoms of the Veteran’s service-connected PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran's reported symptoms included difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. An October 2017 VA examiner stated that the Veteran would benefit from being near a bathroom, but opined that, otherwise, the Veteran's prostate cancer condition would not in and of itself preclude occupation in most occupational activities. A second October 2017 VA examiner also found that the Veteran's prostate cancer condition would not impact his ability to function in an occupational environment nor impair him for employment activities. The Board finds persuasive the opinions of the various VA examiners, none of which found that the Veteran’s symptoms resulted in a total occupational disability. Although the Veteran was terminated from his long-time job at least in part due to his treatment for active prostate cancer, the medical evidence of record demonstrates that his cancer has been in remission since at least October 2013. Moreover, the Veteran was properly compensated for the resulting occupational impairment at the time, as he was in receipt of a 100 percent disability rating until June 30, 2014. Since that time, the Veteran's prostate cancer condition has been manifested by a voiding dysfunction, which has necessitated the use of absorbent material that must be changed more than four times per day and a daytime voiding interval of less than one hour. However, beyond the Veteran’s assertion that he is unable to work due to his prostate cancer residuals and PTSD, the record does not indicate that the Veteran’s conditions have an adverse effect on his ability to secure or follow employment or indicate that he is totally precluded from securing or following any substantially gainful employment due to the service-connected conditions. The Board has considered the Veteran’s occupational and educational history. The Veteran has reported that he has a bachelor’s degree in accounting, and worked for more than 20 years as an accountant. Further, multiple VA examiners have opined that the Veteran's prostate cancer residuals would not prevent the Veteran's employment, and the August 2017 VA examiner described no PTSD symptoms that would completely prevent his ability to obtain and maintain employment. (Continued on the next page)   Therefore, the objective evidence of record does not support a finding that the Veteran’s service-connected disabilities, when considered along with his occupational history, prevent him from securing or following any type of substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel