Citation Nr: 20046038 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 14-00 394 DATE: July 9, 2020 ORDER Entitlement to an evaluation of 60 percent for residuals of prostate cancer for the period prior to May 23, 2014 is granted. Entitlement to an evaluation higher than 60 percent for residuals of prostate cancer is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, residuals of prostate cancer were productive of voiding dysfunction requiring the use of absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. The criteria to establish an evaluation of 60 percent for residuals of prostate cancer for the period prior to May 23, 2014 have been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2019). 2. The criteria to establish an evaluation higher than 60 percent for residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to May 1969. This matter comes before the Board from a September 2013 rating decision by the agency of original jurisdiction (AOJ) that granted service connection for residuals of prostate cancer and assigned a 40 percent evaluation. The Board remanded the appeal for development of the record in June 2015. In September 2015, the AOJ increased the evaluation of prostate cancer residuals to 60 percent, effective May 23, 2014, the date of a VA examination. In November 2019, the Board took jurisdiction over the TDIU issue and remanded the increased rating issue and TDIU for additional development. Evaluation of prostate cancer residuals Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran’s disability, 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 (2018). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). The record reflects that prostate cancer was diagnosed in 2006, and that the Veteran underwent prostatectomy in November 2006. He submitted his claim of entitlement to service connection in October 2012. Malignant neoplasms of the genitourinary system are rated as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2019). However, 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. If there has been no local reoccurrence or metastasis, the disability will be rated on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2019). In this case, the Veteran was no longer undergoing active treatment for prostate cancer at the time of his service connection claim. Thus, the residuals of prostate cancer are appropriately evaluated pursuant to the criteria for voiding dysfunction. Voiding dysfunction is rated base upon urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating for voiding dysfunction contemplates the wearing of absorbent materials, which must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials, which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. On VA examination in August 2013, the examiner noted that the Veteran had voiding dysfunction with urine leakage requiring absorbent material necessitating change two to four times per day. In his September 2013 notice of disagreement, the Veteran stated that he wore a pad 24 hours a day. He disputed the finding that he only had to change the material two to four times per day, indicating that instead he changed his pad six or more times in a 24 hour period. On VA examination in May 2014, the same examiner indicated that the Veteran had experienced significant incontinence since his 2006 surgery. He indicated that he Veteran had urine leakage requiring absorbent material that needed to be changed more than four times per day. The report of a December 2019 examination shows the same finding. Having carefully reviewed the record, to include the Veteran’s competent and credible reports, the Board concludes that for the entire period on appeal, a 60 percent evaluation is warranted for voiding dysfunction. In reaching this conclusion, the Board acknowledges the August 2013 examination report indicating urine leakage requiring absorbent material that needed to be changed two to four times per day. However, the Veteran disputed that finding, and noted in September 2013 that he wore pads 24 hours per day and changed them six or more times in a 24 hour period. This comports with an evaluation of 60 percent. The Board additionally notes that a higher evaluation is not available under the criteria for rating voiding dysfunction. Likewise, higher evaluations are not available under the criteria for rating urinary frequency, obstructed voiding, or urinary tract infection. The Board therefore finds that a 60 percent evaluation, and no higher, is appropriate for the Veteran’s prostate cancer residuals. REASONS FOR REMAND TDIU The Veteran seeks TDIU based on the residuals of his prostate cancer. The Board observes that the Veteran is in receipt of a 60 percent evaluation for voiding dysfunction, and noncompensable evaluations for erectile dysfunction and scars status post prostatectomy. He has indicated that he was a mill worker for a steel company from 1964 to 1994, and that he last worked full time in 2012. He has also reported that he graduated from high school, and that he had two years of college. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, disabilities resulting from a common etiology will be considered as one disability, as is the case here. VA examiners have indicated that the Veteran’s prostate cancer residuals do not impact his ability to work; however, it is unclear whether these conclusions are based on a fully informed review of the Veteran’s education, training, and occupational history. The Board therefore finds that an examination is necessary to obtain a fully informed opinion regarding the impact of the Veteran’s prostate cancer residuals on his occupational functioning. The matters are REMANDED for the following action: 1. The Veteran should be scheduled for a VA to address the functional impact of his service-connected disabilities for the purpose of evaluating entitlement to a TDIU. The claims file should be provided to the examiner for review. The examiner must elicit from the Veteran his complete history regarding his level of education, any special training, and previous work experience. For TDIU purposes, the following is requested. (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of the service-connected low back and bilateral lower extremity disabilities on his ability to perform work and work-like tasks. The Veteran’s response should be recorded in the report(s). (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner should indicate the objective functional effects of the Veteran’s service-connected disabilities on his ability to perform the physical and mental acts required for employment. (i) With regard to physical acts, the examiner should address any functional impairment related to the Veteran’s prostate cancer residuals and discuss the frequency, duration, and/or severity of any limitation arising from the service-connected prostate cancer residuals. (ii) With regard to mental acts, the examiner should address functions of the mind to include concentration, focus, attention, and memory and indicate whether such is due to any service-connected disability. (iii) The examiner should indicate whether the Veteran has had any medical restrictions imposed on his activities due to the service-connected disability. The examiner must explain the rationale for any opinion expressed. 2. Then, readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case   (SSOC) and afforded an appropriate period within which to respond thereto. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.