Citation Nr: A20008548 Decision Date: 05/14/20 Archive Date: 05/14/20 DOCKET NO. 200123-55597 DATE: May 14, 2020 ORDER A permanent and total disability rating for prostate cancer is denied. FINDING OF FACT The rating criteria for the Veteran’s service-connected prostate cancer contemplate remission and therefore preclude the assignment of a permanent and total disability rating. CONCLUSION OF LAW There is no legal basis for a finding of permanence for a 100 percent schedular rating for service-connected prostate cancer. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.327, 3.340(b), 4.115b, DC 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1967 to December 1969, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2018 legacy rating decision. A Statement of the Case (SOC) was issued in December 2019, and the Veteran opted in to the modernized system, known by the Board as the AMA, in a January 2020 VA Form 10182. 38 C.F.R. §§ 3.2400, 19.2(a). Therein, the Veteran selected the evidence submission lane. 38 C.F.R. § 20.301. The period for evidence submission has since expired. Permanent and Total Disability Rating Historically, the Veteran was awarded service connection for prostate cancer in a February 2012 rating decision. A 100 percent rating was assigned at that time, effective February 7, 2012. This rating was subsequently continued in rating decisions dated August 2013, October 2014, June 2015, September 2016, December 2017, and October 2018. The Veteran’s disability has been rated under DC 7528, which authorizes a 100 percent rating for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, DC 7528. He is now seeking a permanent and total disability rating for his prostate cancer. See 38 C.F.R. § 3.340(b) (permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person). In support of this appeal, the Veteran has submitted a January 2020 private treatment letter. Therein, his physician concluded that “[w]ithout question, given his age and the length of time he has and will continue to be treated, [the Veteran’s] condition is active, permanent and will remain active for the remainder of his life.” In doing so, the physician reported that subsequent to multiple examinations and consultation with the Veteran, his condition had been placed in “active surveillance” status. Ongoing treatment would require semi-annual office physicals and ultrasound examinations, and a semi-annual basic metabolic panel along with PSA and testosterone level evaluations. Urethral catheters had also been provided, should the Veteran require their future use. Additionally, medications and/or hormonal supplements would be prescribed and adjusted “as required.” Thus, the Veteran’s condition was classified as “active, permanent and will require treatment, with possible variations, for the remainder of his life.” Further, October 2014, June 2015, July 2016, November 2017, and September 2018 examiners all assessed the Veteran’s prostate cancer as “active” upon evaluation. However, this status was qualified as “watchful waiting,” such that current or recently completed treatment was denied by all examiners. The Board must consider the above evidence against the explicit provisions of DC 7528, which establishes 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 on that or any subsequent examination shall be subject to the provisions of 38 U.S.C. § 3.105(e), pertaining to the reduction of evaluations. Once treatment specific to the veteran’s cancer ceases, a 100 percent rating is no longer for application under DC 7528. Instead, the veteran is to be rated on the residuals thereof, to include voiding or renal dysfunction. Upon the above, it is not found that a total and permanent rating is warranted for the Veteran’s prostate cancer. The medical evidence establishes that his condition has been repeatedly assessed as “active” and will likely remain so for the duration of his life. However, this evidence also clearly indicates that the Veteran has not required treatment via surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, as enunciated in the criteria of DC 7528, since at least October 2014. Although the January 2020 private treatment letter delineates current treatment for the Veteran’s prostate cancer, these methods are directed towards the monitoring and management of his condition and do not include any such treatment methods as included in DC 7528. Therefore, it is not found that a permanent and total disability rating is warranted in this case. Rather, DC 7528 mandates that the Veteran undergo mandatory VA examinations to periodically assess the status and severity of his disability. While the Board regrets the potential burden this may place on the Veteran, it is bound by the laws and regulations set forth herein. These laws and regulations establish that a permanent and total disability rating is not warranted at this time. The preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not applicable, and the Veteran’s appeal is hereby denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.