Citation Nr: 20041771 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 19-12 538 DATE: June 18, 2020 ORDER On and after July 11, 2016, entitlement to an evaluation higher than 60 percent for residuals of prostate cancer is denied. REMANDED Entitlement to an evaluation higher than 70 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial evaluation higher than 40 percent for service-connected residuals of prostate cancer is remanded. Entitlement to an earlier effective date prior to July 11, 2016, for the 60 percent evaluation for residuals of prostate cancer is remanded. Entitlement to service connection for cause of the Veteran's death is remanded. FINDING OF FACT On and after July 11, 2016, the Veteran’s residuals of prostate cancer results in voiding dysfunction but is not active and does not cause renal dysfunction. CONCLUSION OF LAW On and after July 11, 2016, the criteria for a disability rating in excess of 60 percent for prostate cancer have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to June 1969. The Veteran died in March 2017. The appellant is the Veteran’s surviving spouse and has been substituted into this case. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2016 and September 2017 rating decisions by the Department of Veteran’s Affairs (VA) Regional Office (RO). As further noted below, there is an appeal that remains pending that includes service connection for chronic obstructive pulmonary disorder (COPD). This was acknowledged in an April 2019 deferred rating decision. 1. On and after July 11, 2016, entitlement to an evaluation higher than 60 percent for residuals of prostate cancer The Veteran seeks entitlement to higher evaluations for prostate cancer residuals. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptom that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran’s prostate cancer residuals have been evaluated pursuant to 38 C.F.R. § 4.115b, DC 7528. A 100 percent rating is 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. 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 disorder should be rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Notably, erectile dysfunction as secondary to service-connected prostate cancer is already service-connected and is not considered herein. The rating criteria for dysfunctions of the genitourinary system are set forth in 38 C.F.R. § 4.115a (2019). For voiding dysfunction, the maximum evaluation permitted is 60 percent. 38 C.F.R. § 4.115a. Thus, no higher evaluation is warranted under these provisions. Renal dysfunction and recurrent urinary tract infections are also genitourinary dysfunctions rated under 38 C.F.R. § 4.115a; however, as noted below, there is no evidence showing that the Veteran's prostate cancer residuals include renal involvement or urinary tract infections. Accordingly, the Board concludes that voiding dysfunction is the Veteran's predominant complaint. The Veteran underwent a VA examination in July 2016. The Veteran reported his only problems related to the prostate cancer were erectile dysfunction and urinary incontinence. The examiner noted the Veteran’s disease was active, noting voiding dysfunction. There were no other voiding dysfunction symptoms, or any other symptoms or complications related to prostate cancer residuals other than erectile dysfunction. The Veteran’s PSA was found to be normal as of May 2106. The examiner determined there was no renal dysfunction related to the prostate cancer. In August 2016 the RO requested an addendum opinion regarding the conflicting medical evidence found in the July 2016 examination. Specifically, the July 2016 examiner indicated the Veteran’s prostate cancer was an “active disease” but the exam showed the Veterans PSA levels were normal as of May 2016. The August 2016 examiner reviewed the conflicting medical evidence. The examiner opined the Veteran’s PSA has been “normal” since October 2012, six months after diagnosis and radical prostatectomy but is not considered “cancer free” until 5 years after diagnosis and that is why it was noted as active. Further, the examiner noted that the PSA is used to monitor for evidence for need of further treatment to control the cancer; however, the Veteran continues under active surveillance and is not considered in remission until a minimum of 5 years after diagnosis and without signs of return of the cancer. Overall, the available evidence shows that the Veteran is rated at the highest possible evaluation for voiding dysfunction and that there is no renal dysfunction related to the residuals of service-connected prostate cancer. Accordingly, the criteria for a higher evaluation are not met. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 40 percent for service-connected residuals of prostate cancer. Remand is required to issue a statement of the case. Where a notice of disagreement is filed but a statement of the case has not been issued, the Board must remand the claim so that a statement of the case may be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Here, an August 2013 rating decision granted service connection for prostate cancer and assigned a 20 percent evaluation, effective October 29, 2012. The Veteran filed an NOD for an increased evaluation, noting that he desired a 40 percent evaluation. In a September 2014 rating decision, the RO assigned a 40 percent evaluation, effective October 29, 2012. The RO stated that this was a full grant of benefits. In a claim for an increased evaluation, "the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation" and "such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38-39 (1993). When determining whether an appellant limited the scope of an appeal or withdrew an issue from appellate consideration, VA is required to liberally construe an appellant's submissions. Kalman v. Principi, 18 Vet. App. 522, 524 (2004) (citing EF v. Derwinski, 1 Vet. App. 324, 326 (1991)); Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,685 (Sept. 23, 2014) (providing that where a veteran requests a particular effective date on a standard form, but a correct date is earlier, VA would grant the correct date as the forms does not alter the scope of VA’s development and review action). Thus, although the Veteran noted on his NOD that he requested a 40 percent evaluation, he did not clearly express an intent, in that document or elsewhere in the record, to waive or withdraw appellate consideration of an evaluation in excess of 40%. An SOC should have been issued and remains pending. 2. Entitlement to an earlier effective date prior to July 11, 2016, for the 60 percent evaluation for residuals of prostate cancer Remand is required for this issue as it is inextricably intertwined with the issue of entitlement to an increased evaluation for prostate cancer. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). This is because if a higher evaluation is granted prior to July 11, 2016, then the effective date issue may be moot. 3. Entitlement to an evaluation higher than 70 percent for service-connected PTSD is remanded. First, remand is required to obtain outstanding treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). In a July 2016 VA treatment record the Veteran reported he attended group meetings at the Vet Center in Montrose and he also sees a doctor there. During the appointment he expressed a desire to get a copy of those records. No such Vet Center records are associated with the claims file. Accordingly, remand is required to obtain all outstanding VA treatment records. Second, remand is required for a current VA addendum opinion that addresses the severity of the Veteran’s PTSD after reviewing the relevant treatment records.   4. Entitlement to service connection for cause of the Veteran's death is remanded. Remand is required because the Veteran’s cause of death is inextricably interwind with the pending service connection for COPD claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The Appellant’s claim for cause of death is due in part to a claimed COPD which is not service connected and is not part of this appeal. The Veteran perfected an appeal of entitlement to service connection for COPD in a November 2018 VA Form 9. The issue, along with over 20 other issues, has not yet been certified. Here, the appellant alleges that the Veteran’s cause of death is related to his COPD. See March 2020 Brief. The appellant submitted a letter in March 2020 from Dr. B regarding the Veteran’s cause of death. Dr. B. opined it is as likely as not the Veteran’s conceded agent orange exposure caused his COPD, and that his COPD contributed substantially and materially to his pneumonia and respiratory failure, and ultimately his death. Further, Dr. B opined it is as likely as not the Veteran’s service-connected PTSD assisted in the development of his pulmonary hypertension (due to COPD). The RO denied the claim of entitlement for service connection for cause of death in a September 2017 rating decision. The Veteran had an active appeal pending at death, but the appeal for COPD is not yet before the Board. Based on the foregoing, the Board will remand to defer consideration of the cause of death issue pending the processing and adjudication of the COPD issue.   The matters are REMANDED for the following action: 1. Continue to process the issues on appeal as noted in the October 2018 statement of the case, and as acknowledged in an April 2019 deferred rating decision, which includes entitlement to service connection for COPD. 2. Issue an SOC pertaining to the issue of entitlement to an evaluation in excess of 40 percent for service-connected residuals of prostate cancer. Notify the appellant and her attorney that a substantive appeal must be filed to perfect and appeal. If a timely appeal is filed, return the case to the Board. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the appellant and her attorney. 4. Contact the appellant and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to specifically include Vet Center records from the facility in Montrose. Subsequently, and after securing the proper   authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the appellant and her representative. 5. After any additional records are associated with the claims file, obtain an addendum opinion to determine the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must address the following: 1) any relevant VA treatment records, including the July 2016 VA treatment record in which the Veteran reported having suicidal thoughts; 2) the July 2016 statement from the Veteran’s wife; 3) the July 2016 VA examination; and 4) any obtained Vet Center records. 6. Thereafter, readjudicate the cause death issue on appeal after the Board has issued its decision regarding the claim of entitlement to service connection for epilepsy. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide   the Veteran and his attorney with an opportunity to respond. Then return the case to the Board, if otherwise in order. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.