Citation Nr: 20021584 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-37 361 DATE: March 26, 2020 ORDER From June 1, 2015 to November 21, 2018, a rating of 40 percent, but no higher, for residuals of prostate cancer is granted. Since November 21, 2018, a rating of 60 percent for residuals of prostate cancer is granted. Effective from November 21, 2018, a total disability based on individual unemployability (TDIU) is granted. REMANDED A TDIU prior to November 21, 2018.   FINDINGS OF FACT 1. From June 1, 2015 to November 21, 2018, the Veteran’s prostate cancer remained in remission and was manifested by voiding dysfunction that required him to change absorbent materials two to four times per day. 2. Since November 21, 2018, the Veteran’s prostate cancer continued to remain in remission, and was manifested by voiding dysfunction that required him to change absorbent materials more than four times per day. 3. Since November 21, 2018, the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. From June 1, 2015 to November 21, 2018, the criteria for a rating of 40 percent, but no higher, for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115, Diagnostic Code (DC) 7528. 2. Since November 21, 2018, the criteria for a disability rating of 60 percent for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115, DC 7528. 3. Since November 21, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1967. The case is on appeal from a June 2017 rating decision. A rating in excess of 20 percent for residuals of prostate cancer prior to November 21, 2018, and in excess of 40 percent thereafter. Claim History and Appeal Period The Veteran contends that he should have a higher rating for residuals of his prostate cancer, or alternatively rated at 100 percent based on continuing active prostate cancer. The Veteran is rated at 100 percent from November 19, 2012 due to a diagnosis of prostate cancer following a September 2012 examination. The Veteran’s evaluation for prostate cancer was reduced to 20 percent on June 1, 2015 based upon VA medical records indicating remission of the condition. The notification letter for the reduction rating decision is dated March 30, 2015. Following, the Veteran did not submit a notice of disagreement (NOD), but rather on April 12, 2015, filed an informal claim for restoration of 100 percent for his prostate cancer. In the correspondence he stated that he was still receiving monthly hospital treatment, and was also “bleeding from both his anus and penis.” In May 2015, the Veteran was notified that his informal claim could not be accepted, as VA regulations now require all claims to be submitted on a standardized form. Thereafter, the Veteran submitted a new claim for prostate cancer in May 2015, within one year of the March 2015 rating reduction decision. He was afforded a VA examination in July 2015, and was notified of the RO determination that prostate cancer residuals did not warrant a higher rating by an October 2015 letter. The Veteran continued to file claims for a higher rating for his prostate cancer, instead of submitting NODs, in February 2016, July 2016, March 2017, with subsequent notifications of denial in May 2016 and July 2017, respectively. The United States Court of Appeals for Veterans Claims (Court) has held that when a statement is submitted within one year of a rating decision, even if it is not found to be a valid NOD with that prior rating decision, that “does not end the inquiry” as the statement (and any other submissions received within one year of the rating decision) must be examined to determine whether it includes the submission of new and material evidence. Buie v. Shinseki, 24 Vet. App. 242 (2010). Where new and material evidence is submitted prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). See also Beraud v. Shinseki, 766 F.3d 1402 (Fed. Cir. 2014); Mitchell v. McDonald, 27 Vet. App. 431 (2015). A new claim for an increased rating filed during the appeal period may also constitute new and material evidence under § 3.156(b). Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Board finds the April 12, 2015 correspondence and July 2015 VA examination sufficient to constitute new and material evidence under 3.156(b). See 38 C.F.R. § 3.156(a). Thus, while the decision on appeal is still the June 2017 rating decision (with a one-year look back period from the July 2016 claim), the Board will also consider the new and material evidence in connection with the March 2015 rating reduction decision. Thus, the scope of the appeal is twofold in this regard. In September 2019, the RO awarded an increase to 40 percent for prostate cancer residuals effective November 21, 2018. As such, the matters before the Board are entitlement to a rating in excess of 20 percent from June 1, 2015, the date of reduction from 100 to 20 percent, and in excess of 40 percent after November 21, 2018. The Veteran is also separately rated for radiation proctitis (colon damage due to radiation) at 30 percent since June 1, 2015, and erectile dysfunction associated with residuals of prostate cancer at zero percent since January 7, 2015. Legal Criteria Prostate cancer is evaluated under DC 7528 for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. According to the Note associated with DC 7528, following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, if there has been no local reoccurrence or metastasis, the disability is to be rated on the residuals of voiding dysfunction or renal dysfunction, whichever is predominant. As the evidence of record detailed below does not reveal any renal dysfunction, a disability rating under this alternative is not warranted. A rating based on the diagnostic criteria for voiding dysfunction can be accomplished in one of three ways: for urine leakage, urinary frequency, or voiding obstruction. 38 C.F.R. § 4.115a. Since the evidence of record detailed below does not include any signs or symptoms of obstructed voiding, a disability rating under this alternative is also not warranted. For urine leakage, a 20 percent disability rating is warranted if the disability requires the changing of absorbent materials less than twice per day; a 40 percent disability rating is warranted if it requires the changing of absorbent materials between two and four times per day; and a 60 percent disability rating is warranted if it requires the changing of absorbent materials more than four times per day. Under urinary frequency, a 20 percent disability rating is warranted if the daytime voiding interval is between one and two hours, or the awakening to void is between three and four times per night; and a 40 percent disability rating is warranted if the daytime voiding interval is less than one hour, or the awakening to void is five or more times per night. While a veteran’s symptomatology may include distinct manifestations of urine leakage, urinary frequency, and obstructed voiding, they do not warrant separate consideration as they stem from the same residual disability. Necessarily, the disability rating assigned under one of these subcategories contemplates the other manifestations in determining the most advantageous and appropriate disability rating. Thus, awarding a separate disability rating for urine leakage, urinary frequency, and obstructed voiding would constitute pyramiding. 38 C.F.R. § 4.14; see also 38 C.F.R. § 4.115a (instructing to rate based on the predominant area of dysfunction.)   Facts Review of the claims file reflects that the Veteran was diagnosed with prostate cancer following a September 2012 examination. Subsequently, the Veteran underwent implant of radiation seeds as treatment in March 2013, and was considered in remission from his prostate cancer from at least June 1, 2015. After receiving notice of the reduction rating for his prostate cancer residuals, the Veteran submitted correspondence in April 2015 indicating that he was still being treated every month at the hospital, with additional bleeding from his anus and penis. The Veteran was provided a VA examination in July 2015. His current diagnosis was prostate cancer in remission. His voiding dysfunction severity was marked as “other,” with a description that he “[u]ses diaper only when he out on trips, out in the car, restaurants etc.” His urinary frequency was voiding intervals between 1 and 2 hours, and nighttime awakening to void 3 to 4 times. The examiner noted that the Veteran reported blood in his urine about once a week. In November 2016 correspondence, the Veteran reported that despite prescribed medication for residuals of his cancer, his damaged bladder required the use of absorbent material be changed multiple times a day, and he voids himself almost hourly, with bleeding from his colon and bladder requiring the purchase of black pants. He stated he is confined to his room due to embarrassment and the danger of having accidents in public. A medical CAPRI document two days later reported blood in his urine approximately three days per week, only experiencing leaking rarely with urgency. A February 2017 medical CAPRI document notes that Veteran wears a diaper “when he goes for long distance,” but in March 2017 correspondence he indicates that he changes absorbent material “several times a day,” and “can no longer work because I am afraid of having a bowel movement when I am out of the house and have no control over.” A May 2017 VA examination found that the Veteran urinates seven to eight times during the day (approximately every two hours), and about four times every night. The Veteran described his condition as “If someone is in the bathroom, I'm in trouble. I empty my bladder, and after I leave the bathroom, I have to go back again. I stand there for a while and more comes out.” It was checked in the report that he has to change absorbent material less than two times per day. The examiner also indicated that the functional impact included needing to be a near a bathroom. The Veteran underwent another VA examination in November 2018. Current symptoms included erectile dysfunction, voiding dysfunction, proctitis, and diarrhea, with unsuccessful treatments of a hyperbaric oxygen chamber and oral medications for his prostate residuals. The examiner found that his voiding dysfunction caused urine leakage which required absorbent material to be changed more than 4 times per day. It was also reported that he had daytime voiding every 2 to 3 hours, and was awoken 3 to 4 times per night with voiding urgency. Analysis After a full review of the record in conjunction with the applicable laws and regulations, the Board finds that a 40 percent rating is warranted from June 1, 2015 to November 21, 2018. The July 2015 examiner noted voiding dysfunction of “other,” indicating the need for diapers while out on trips, in the car, and restaurants. Those events can readily be interpreted as daily activities, requiring the changing of absorbent material at least two times per day. While the May 2017 VA examination indicated the Veteran urinates approximately every two hours, and changes absorbent material less than two times per day, the Veteran reports changing multiple times per day, along with bleeding that requires the wearing of black paints. He also describes embarrassment from having accidents in public and constantly having to be near a bathroom. He is clearly competent to report these symptoms, and has provided believable lay statements in this regard. See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, the preponderance of the evidence is against a rating in excess of 40 percent prior to November 21, 2018. Although the evidence of record establishes the Veteran experienced voiding dysfunction during this timeframe, at worst, it required him to change his absorbent materials between two and four times per day, with both July 2015 and May 2017 VA examiners indicating it was less than two times. Thus, a higher 60 percent disability rating is not warranted because it requires the changing of absorbent material more than four times per day. A 40 percent rating is also the highest possible under urinary frequency, which reflects voiding intervals less than one hour, or awakening to void five or more times per night. Since November 21, 2018, the Board finds that an increased disability rating to 60 percent is warranted. At the VA examination in November 2018, the examiner found that the Veteran’s voiding dysfunction required the wearing of absorbent material which must be changed more than four times per day. A 60 percent disability rating is the highest possible under 38 C.F.R. § 4.115a for the residuals of voiding dysfunction regardless of whether it is rated under the diagnostic criteria pertaining to urinary leakage, urinary frequency, or obstructed voiding. The Board notes that the Veteran is already rated under separate ratings for radiation proctitis (colon damage due to radiation) and erectile dysfunction associated with residuals of his prostate cancer, and there is no indication that any further separate or higher alternative ratings are warranted. The Board additionally finds that extraschedular rating consideration was not raised in this case and that the evidence does not present any exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017). With regard to the contention that the Veteran may continue to have prostate cancer despite a determination of remission, and thus should be rated at 100 percent under DC 7528, the Board has considered the WebMD internet article referenced in the Veteran’s January 2020 Appellate Brief. To the contrary, the medical records contained in the claims file show continued remission since cessation of the procedures resulting in the Veteran’s remission, with PSA (prostate specific antigen) levels remaining below 1.0. He continues to be tested every three months for PSA levels for possible reoccurrence, and at no time during the pertinent timeframe was he referred for radiation, chemotherapy, or other therapeutic treatment as a result of PSA levels. Accordingly, the Board finds a higher 100 percent disability rating is not warranted because the most probative evidence of record does not demonstrate that he has a recurrent malignant neoplasm of the genitourinary system. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds that from June 1, 2015 to November 21, 2018, his prostate cancer residuals warrant a 40 percent rating, but not higher, and warrant a 60 percent rating thereafter. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. A TDIU since November 21, 2018. While the Veteran’s increased rating claim was on appeal, he submitted a claim for a TDIU in December 2019. The Board finds that the Veteran’s TDIU claim is part and parcel of the Veteran’s increased rating claim for residuals of prostate cancer, and thus, no further appeal is necessary for that issue and the Board has jurisdiction over it. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). Specific Legal Criteria A total disability rating for compensation may be assigned where the schedular rating is less than total and 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. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and 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. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and; • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Facts and Analysis Based on the Board’s decision to award a 60 percent rating for residuals of prostate cancer, the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) since November 21, 2018. See also 38 C.F.R. § 4.25. In his claim for individual unemployability received by the VA in December 2019, the Veteran indicates that he has not worked full-time as a driver since March 2012 due to service-connected disabilities. The claims file includes records from the Social Security Administration (SSA) indicating that the Veteran has been receiving disability since March 2001 due to a back disability. It also indicates that that since 1984 the Veteran has worked as a truck driver and deliveryman, and that the Veteran has received at least some vocational education past high school. In February 2016 correspondence, the Veteran stated that he no longer has the ability to work full-time or part-time due to fear of a bowel incident, and “even with a pamper it is still a mess.” He also reported being confined to his room from embarrassment and the danger of having an accident in public, and that he “can no longer work because I am afraid of having a bowel movement when I am out of the house and have no control over.” See November 2016 correspondence. At his May 2017 VA examination, the examiner noted that his voiding and urgency disability had a functional impact that included needing to be a near a bathroom. At his November 2018 VA examination, it was noted that he has diarrhea up to 3 times per day, has undergone 60 cycles of hyperbaric oxygen chamber treatment for bowel and bladder dysfunction, and still complains of urinary urgency, hesitancy, drippage and leakage. This still occurs with medication therapy. It was also determined that he requires wearing absorbent material that must be changed more than four times per day. Given the totality of the evidence of record, to include the Veteran’s level of education and work history of primarily a truck driver, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected residuals of prostate cancer since November 21, 2018. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND A TDIU prior to November 21, 2018. While the Board factually found the Veteran is warranted TDIU from November 21, 2018, the Veteran did not meet the percentages criteria for a schedular grant of TDIU under 38 C.F.R. § 4.16(a) prior to November 21, 2018. Because the Board is precluded by regulation from assigning an extraschedular TDIU in the first instance, remand for referral to the Director in accordance with 38 C.F.R. § 4.16(b) is thus warranted. See Wages v. McDonald, 27 Vet. App. 233 (2015). The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to November 21, 2018 to the Director of VA’s Compensation Service for extraschedular consideration. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.