Citation Nr: 21002143 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-20 073 DATE: January 12, 2021 REMANDED Entitlement to a permanent and total disability rating for prostate cancer is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the U.S. Army from August 1959 to January 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that new evidence that has not been considered by the Agency of Original Jurisdiction (AOJ) was received following the last Statement of the Case (SOC) in May 2019. However, as the matter is remanded in full, the Veteran is not prejudiced by consideration of this evidence. Thus, the Board can proceed. 1. Entitlement to a permanent and total disability rating for prostate cancer The Veteran was granted service connection for prostate cancer in a May 2018 rating decision. See May 2018 Rating Decision. In this rating decision, the RO assigned a total disability rating for the Veteran’s prostate cancer on a temporary basis, effective March 2018. See id. The Veteran contends that he is entitled to a permanent total disability rating of 100 percent for his prostate cancer because his physician recommended active surveillance as the only course of treatment due to his advanced age. See June 2018 Notice of Disagreement. The RO rated the Veteran’s prostate cancer under Diagnostic Code 7528, which authorizes a total disability rating for malignant neoplasms of the genitourinary system. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528 specifically provides that after treatment for genitourinary cancer, the Veteran should be re-evaluated. If upon re-evaluation, the cancer has gone into remission or changed in severity, a 100 percent rating may no longer be appropriate. See id. Instead, at that time, the Veteran should be rated based on any residual disabilities caused by the cancer, such as voiding or renal dysfunction. See id. In other words, because prostate cancer itself is not always permanent, when it is no longer in active status, the disability is not rated as malignant cancer itself but is instead rated based on any residuals caused by the cancer. However, in certain circumstances, cancer that is untreatable or unlikely to improve may be rated as a permanent disability. Under 38 C.F.R. § 3.340(b), “[p]ermanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person . . . . Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.” 38 C.F.R. § 3.340(b). Factors to consider in determining permanence include the age of the disabled person, failure to pursue treatment, and whether the disability has been shown to be of longstanding duration, is actually totally incapacitating, or is of such a nature as to render the probability of permanent improvement remote. See KL v. Brown, 5 Vet. App. 205, 208 (1993); 38 C.F.R. § 3.340(b). Here, the Veteran, through his representative, asserts that his disability should be considered permanent because he had no treatment options other than active surveillance. See June 2018 Notice of Disagreement. However, both VA and private medical treatment records show that the Veteran underwent radiation treatment for his prostate cancer and responded well to the treatment. See Nov. 2018 VA Examination at 5; Nov. 2019 VA Examination at 3-4; Aug. 2020 VA Examination at 4; Private Medical Treatment Records at 1, 7. Additionally, since service connection for prostate cancer was granted in May 2018, the Veteran has periodically undergone VA examinations to re-evaluate the severity of his condition. November 2018 and November 2019 VA examinations noted his prostate cancer was in active status. See Nov. 2018 VA Examination at 5; Nov. 2019 VA Examination at 3-4. But the most-recent August 2020 VA examination showed the Veteran’s prostate cancer was in remission. See Aug. 2020 VA Examination at 4. However, in reviewing the August 2020 VA examination, the RO issued a rating decision continuing the Veteran’s 100 percent disability rating based on the presence of active malignancy, though noting that the rating was not permanent as there was likelihood of improvement. See Aug. 2020 VA Rating Decision. Accordingly, after thorough review of the record, the Board finds the evidence unclear and conflicting as to the remission status, severity, and likelihood of improvement of the Veteran’s prostate cancer. Further development is therefore necessary to determine the permanency of the Veteran’s prostate cancer. Thus, remand is required to obtain a new VA examination and medical opinion to determine whether the Veteran’s prostate cancer is totally incapacitating without probability of improvement. See 38 C.F.R. § 3.340(b). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity and likelihood of improvement of the Veteran’s prostate cancer. The entire claims file should be made available to the examiner. All tests and studies deemed necessary by the examiner should be performed. The examiner is asked to offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the total impairment caused by the Veteran’s service-connected prostate cancer is permanent in nature. In providing this opinion the examiner is asked to opine on the following: a. Whether the Veteran’s prostate cancer is currently in active status or whether it is in remission. b. Whether the Veteran’s prostate cancer is reasonably certain to continue in active status throughout his life, or whether it is at least as likely as not that the cancer itself will improve. In so opining, the examiner must take into consideration the Veteran’s assertion that his prostate cancer is a permanent and lifelong disability due to his advanced age and limited treatment options. See June 2018 Notice of Disagreement. The Board notes that prostate cancer rated under Diagnostic Code 7528 contemplates active malignant neoplasms, but not residuals of cancer, which are rated in accordance with separate rating provisions. The Board further notes that diseases or injuries of long-standing duration which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of improvement under treatment is remote. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Gomez, Law Clerk 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.