Citation Nr: 21005172 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 19-20 612 DATE: January 29, 2021 ORDER The reduction for service-connected prostate cancer, to include urinary condition, from 100 to 20 percent was improper and a 100 percent disability rating is restored effective March 1, 2015, the date of the reduction. Entitlement to a rating in excess of 60 percent for prostate cancer, to include urinary condition, on an extraschedular basis under 38 C.F.R. § 3.321(b) is dismissed as moot. Entitlement to an effective date earlier than October 26, 2015, for a 60 percent rating for prostate cancer is dismissed as moot. Entitlement to an effective date earlier than July 26, 2016, for special monthly compensation (SMC) based on housebound status is granted from March 1, 2015. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) for the period from February 6, 2008 to September 30, 2009 is granted. Entitlement to an earlier effective date of February 6, 2008 for eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) did not provide the Veteran with a predetermination hearing pursuant to his timely request for such a hearing prior to reducing his rating for prostate cancer from 100 percent to 20 percent in December 2014 and constitutes a prejudicial violation of due process. 2. The December 2014 rating decision that reduced the rating for the Veteran’s service-connected prostate cancer from 100 percent to 20 percent effective March 1, 2015, is void ab initio. 3. As a 100 percent schedular rating is restored for prostate cancer effective the date that it was reduced on March 1, 2015, there remain no questions of law or fact to be decided regarding the claim for a higher than 60 percent rating. 4. As a 100 percent schedular rating is restored for prostate cancer effective the date that it was reduced on March 1, 2015, there remain no questions of law or fact to be decided regarding the claim for an effective date earlier than October 26, 2015 for a 60 percent rating. 5. The Veteran is entitled to an earlier effective date of March 1, 2015, for SMC at the housebound rate as this is the date that he satisfied the requirements for such a rating. 6. Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the entire appeal period from February 6, 2008 to September 30, 2009. 7. The Veteran is entitled to an effective date of February 6, 2008 for the award of DEA benefits as this is the date that he was assigned a TDIU rating. CONCLUSIONS OF LAW 1. The reduction of the rating for prostate cancer from 100 percent to 20 percent effective March 1, 2015 was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), (i). 2. The claim for a rating higher than 60 percent for prostate cancer is dismissed as moot. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. The claim for an effective date earlier than October 2015 for a 60 percent rating is dismissed as moot. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 4. The criteria for an earlier effective date of March 1, 2015 for SMC at the housebound rate under 38 U.S.C. § 1114(s) are met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.400. 5. For the appeal period from February 6, 2008 to September 30, 2009, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16, 4.19, 4.25. 6. The criteria for entitlement to an earlier effective date for the grant of eligibility to DEA are met from February 6, 2008. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the military from April 1963 to April 1966. This matter before the Board of Veterans’ Appeals (Board) arises from rating decisions dated in May 2016 and January 2017 of the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2016 rating decision, the AOJ increased the Veteran’s service-connected prostate cancer from 20 percent to 60 percent, effective October 26, 2015. The Veteran appealed the effective date of the increase and the assigned rating to the Board. In a March 2019 Board decision, the Board denied an effective date earlier than October 26, 2015 for the assigment of a 60 percent disability rating for service-connected prostate cancer, to include urinary condition, and denied a rating in excess of 60 percent for the disability. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court) and pursuant to a Joint Motion for Remand (JMR) and Court order in June 2020, the Court vacated the Board’s March 2019 decision and remanded the matter back to the Board. In the January 2017 rating decision, the AOJ granted the Veteran a TDIU, eligibility for DEA benefits and SMC at the housebound rate effective July 26, 2016. The Veteran appealed the effective dates of these awards to the Court. In an August 2017 Board decision, the Board found that the issue of entitlement to a TDIU prior to July 26, 2016, had not been raised by the record. The Veteran appealed that determination to the Court and in a JMPR and Court Order in June 2018, the Court vacated that portion of the Board decision that found that the issue of entitlement to a TDIU prior to July 26, 2016 had not been raised by the record. In a subsequent Board decision in January 2019, the Board denied entitlement to a TDIU prior to July 26, 2016. In a September 2019 Board decision, the Board dismissed the issue of entitlement to an effective date earlier than July 26, 2016, for the award of a TDIU, denied an effective date earlier than July 26, 2016, for SMC based on housebound status, and denied an effective date earlier than July 26, 2016, for eligibility for DEA Benefits. The Veteran appealed the January 2019 Board decision to the Court and pursuant to a JMR and Court Order in October 2019, the Court vacated the January 2019 Board decision and remanded the matter back to the Board. In an April 2020 Board decision, the Board granted a TDIU effective March 1, 2015, and remanded the issue of entitlement to a TDIU from February 6, 2008 to September 30, 2009 to the AOJ for consideration of a TDIU, to include on an extraschedular basis. The Veteran appealed the September 2019 Board decision to the Court and pursuant to a JMR and Court Order in August 2020, the Court reversed the dismissal of the issue of entitlement to an effective date earlier than July 26, 2016, for the award of a TDIU, and vacated the issues of entitlement to effective dates earlier than July 26, 2016, for SMC based on housebound status and DEA benefits. In effectuating the Board’s April 2020 decision to grant a TDIU effective March 1, 2015, the AOJ also granted an earlier effective date March 1, 2015 for DEA benefits. December 2014 Rating Reduction In December 2009, the AOJ granted the Veteran’s September 2009 claim for service connection for prostate cancer, effective September 30, 2009. His prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 as a malignant neoplasm of the genitourinary system. Under Diagnostic Code 7528, 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 6 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 disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. The advance written notice concerning proposed action must inform the beneficiary that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105(i). If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. Id. The 10-day advance notice may be waived by agreement between VA and the beneficiary or representative. Id. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. Id. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. Id. In the June 2020 JMR, the parties pointed out that the Board had failed to address the representative’s argument in the appeal of an earlier effective date for a 60 percent rating for prostate cancer that the December 2014 final reduction had not become final. The Board notes that the Veteran’s representative has argued that this is because she was never provided with notice of the December 2014 decision. 38 C.F.R. § 3.104. However, the Board also notes that within the one year period following the promulgation of the December 2014 decision reducing the rating for prostate cancer from 100 percent to 20 percent, the Veteran filed a claim for service connection for urinary issues. In conjunction with this claim, in November 2015 the RO provided the Veteran with a urinary tract examination, which noted that the Veteran met the criteria for a rating in excess of 20 percent for his residuals of prostate cancer. This evidence was not of record at the time of the December 2014 decision and showed that the Veteran’s prostate cancer residuals were worse than currently rated. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011); Beraud v. McDonald, 766 F.3d 1402, 1403–04 (Fed. Cir. 2014). As new and material evidence was associated with the file within the one year appellate period following the reduction and assignment of the 20 percent rating in the December 2014 decision, that decision did not become final. As such, the Board will review the propriety of the December 2014 reduction as part of the increased rating claim on appeal. Since the Board has found that the December 2014 final reduction did not become final by operation of 38 C.F.R. § 3.156(b), the Board need not address the attorney’s argument that the decision did not become final because they did not receive notice of the final reduction. Concerning the propriety of the reduction, in terms of the requirements under 38 C.F.R. § 3.105(e) for rating reductions and reduced compensation, it is evident from the record that the AOJ did notify the Veteran and his representative of its proposal to reduce his rating of prostate cancer from 100 percent to 20 percent in September 2014 despite the fact that the advance written notice concerning the proposed action is not on file. This is evident based on the Veteran’s representative’s written reply to VA in October 2014 acknowledging receipt of the proposed reduction in September 2014. However, since the actual letter is not of record, it is unclear whether the notice was in accordance with the provisions of 38 C.F.R. § 3.105(e) and 38 C.F.R. § 3.105(i) including the requirement that the Veteran be given at least 60 days to submit additional evidence, and notice of his right to request a predetermination hearing within 30 days. That notwithstanding, the Veteran’s representative requested a “personal” hearing on the matter in writing in October 2014 which was within 30 days of the September 2014 notice. This request is construed as a request for a predetermination hearing. Such a hearing was never scheduled. The Veteran and his representative pointed this out in a notice of disagreement that they filed in February 2017. This constitutes a prejudicial violation of due process. 38 C.F.R. § 3.105(i). Accordingly, the reduction of the rating for the Veteran’s prostate cancer from 100 percent to 20 percent effective March 1, 2015 is void ab initio. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (where VA reduces a rating without observing applicable laws and regulations, the rating is void ab initio and the prior rating must be reinstated effective the date of the reduction). Therefore, the Board restores the 100 percent rating effective from the date of reduction on March 1, 2015. Entitlement to an earlier effective date for the award of a 60 percent rating for residuals of prostate cancer and an increased rating for residuals of prostate cancer, to include on an extraschedular basis. The Veteran’s appeal of an effective date earlier than October 26, 2015 for a 60 percent rating for the Veteran’s prostate cancer is moot in light of the restoration of a 100 percent rating effective the date of the reduction on March 1, 2015, resulting in the Veteran being in receipt of a 100 percent rating since the date service connection was effectuated. That is, there remain no questions of law or fact to be decided regarding this claim since the Veteran is being awarded the greater benefit of a 100 percent schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). An extraschedular rating is applicable in the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability. 38 C.F.R. § 3.321(b). In this case, the restoration of the 100 percent rating for the Veteran’s prostate cancer on the date of the reduction on March 1, 2015, resulting in the Veteran being in receipt of a 100 percent rating since the date service connection was effectuated, renders the appeal for a higher than 60 percent rating on an extraschedular basis moot as there remain no questions of law or fact to be decided regarding this claim. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Earlier Effective Date for SMC at the Housebound Rate Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Pursuant to 38 U.S.C. § 1114(s), a Veteran is entitled to SMC at the rate specified in that subsection if the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. The facts in this case show that the Veteran was initially awarded SMC benefits at the housebound rate under 38 U.S.C. § 1114(s) effective September 30, 2009 due to the 100 percent rating for his prostate cancer and additional service-connected disabilities that combined to a rating of 60 percent or more. As noted above, the AOJ found in December 2014 that due to the reduction of the Veteran’s rating for prostate cancer from 100 percent to 20 percent effective March 1, 2015, the Veteran no longer satisfied the criteria for SMC at the housebound rating as of March 1, 2015. This is because he no longer had a total rating plus additional disabilities at 60 percent or more. He was subsequently awarded SMC under 38 U.S.C. § 1114(s) effective July 26, 2016 based on his TDIU rating plus additional service-connected disabilities that combined to a rating of 60 percent or more. Consequently, the period for entitlement to SMC at the housebound rate is from March 1, 2015 to July 26, 2016. The decision above restoring the 100 percent rating for the Veteran’s prostate cancer effective March 1, 2015, satisfies the criteria for SMC at the housebound rate as of that date. In this regard, in addition to the 100 percent rating for prostate cancer as of March 1, 2015, the Veteran had a combined rating of 60 percent for his service-connected PTSD rated at 50 percent, left ankle disability rated at 20 percent, and tinnitus rated at 10 percent. See 38 U.S.C. § 1114(s); 38 C.F.R. § 4.25. Accordingly, an earlier effective date of March 1, 2015, to July 26, 2016 is warranted for SMC at the housebound rating under 38 U.S.C. § 1114(s). TDIU from February 6, 2008 to September 30, 2009 A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In order for claimants who have one service-connected disability to qualify for TDIU under section 4.16(a), that disability must be rated 60 percent or greater. Id. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant's disabilities must be 70 percent or greater. Id. This appeal stems from the Veteran’s February 6, 2008 claim for a TDIU due to his orthopedic and mental disabilities. He reported when filing this claim that he stopped working in December 1989. Records from the Social Security Administration (SSA) show his work history to include work as a carpenter, mechanic and truck driver. They also show that he has a high school education. The Veteran’s service-connected disabilities for the period from February 6, 2008 to September 30, 2009 include PTSD rated 50 percent disabling; left ankle disability rated 20 percent disabling; tinnitus rated 10 percent disabling and hearing loss rated 0 percent. The combined disability rating is 60 percent. Accordingly, these ratings do not meet the criteria under 38 C.F.R. § 4.16(a). Because the Veteran's combined rating does not meet the percentage standards of 38 C.F.R. § 4.16 (a) for the appeal period from February 6, 2008 to September 30, 2009, the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16(b). It is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Such an extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board did so in its April 2020 remand. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Pertinent evidence includes records from SSA which show that the Veteran was awarded disability benefits in May 1993, effective in 1990, due to a nonservice-connected back disorder. However, SSA medical records note that the Veteran had a left ankle (talus) disability that caused impairment. In this regard, the March 1993 decision that awarded disability benefits notes that the Veteran favored his left ankle and that it was in his best interest to avoid activities requiring balancing, unprotected heights, the use of foot controls and uneven surfaces because of the condition of and pain experienced in the left ankle. With this said, these records precede the period on appeal. Evidence closer in time to the period on appeal include ankle findings from a January 2008 VA examination report which notes that the Veteran had chronic left ankle pain. The report also notes that the Veteran wore an ankle brace to aid in ambulation and he used a cane. There is also a February 2009 VA surgery consult record containing the Veteran’s report that he had a lot of pain on the lateral aspect of his left foot which was worse than his right foot. He was assessed as having subtalar joint severe arthrosis posterior facet with peroneal tendonitis left foot. Additionally, a private medical note in July 2009 shows that the Veteran’s left ankle symptoms were progressive and worsening and that surgery was recommended. A subsequent VA examiner in May 2010 reported that the Veteran’s left ankle disability had significant effects on his usual occupation due to decreased mobility, decreased manual dexterity, problems with lifting and carrying, decreased strength and lower extremity pain. In terms of his service-connected psychiatric disability, a VA examiner in June 2010 reported that the Veteran had irritability which strained family relationships and that he demonstrated irritability during the examination. He further reported that the Veteran had no social relationships or leisure interests, he was tangential at times, and his psychiatric symptoms were “chronic and severe”. He also noted that the Veteran had a “moderate decline in functioning since last exam”. In November 2018, a private vocational expert, W.C., submitted a report finding that the Veteran was unable to obtain and maintain substantially gainful employment due to his left ankle, hearing, tinnitus, psychiatric disability and prostate cancer. In this regard, Mr. Cody opined that it was at least as likely as not that the Veteran had been precluded from securing or following a substantially gainful occupation due to the combined effects of his service-connected PTSD, left ankle condition, and prostate cancer likely since March 31, 2000, when service connection for PTSD was granted, or certainly by April 16, 2002 when service connection was granted for his left ankle disability. The Board notes that while W.C. included consideration of the Veteran’s prostate cancer in his opinion, the Veteran was not service-connected for prostate cancer for the period from February 2008 to September 2009. In any event, as noted, the examiner found that the Veteran was unable to follow a substantial gainful occupation since March 2000 due to his service-connected psychiatric disability alone and certainly by April 2002 when service connection was granted for his left ankle disability. There is also the opinion of the Executive Director of Compensation and Pension in November 2020 who reported that while the Veteran’s service-connected conditions were shown to have some impairments to functioning, the records did not show his service-connected conditions were “totally disabling”, and they did not support an extra-schedular evaluation for individual unemployability benefits. In this regard, the Executive Director reported that records show moderate impairment due to the Veteran’s psychiatric disability and mild to moderate impairment due to his left ankle disability. He also noted that the Veteran had difficulty hearing what people say due to his hearing loss, and that he had constant tinnitus which interfered with his sleep. He concluded that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment prior to September 30, 2009. The Board finds that after reviewing the probative evidence outlined above, including W.C.’s opinion, the evidence is at least in relative equipoise as to whether the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities from February 6, 2008 to September 30, 2009. With the benefit of the doubt resolved in his favor, a TDIU is granted from the February 6, 2008 date of claim to September 30, 2009. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b). Earlier Effective Date for DEA Benefits Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(8). The Veteran was awarded DEA benefits in an August 2020 rating decision effective March 1, 2015, the date that he was awarded a TDIU and entitlement arose. Since the effective date for DEA benefits is directly related to a finding that a Veteran has a total disability that is permanent in nature, an earlier effective date in this case of February 6, 2008, for DEA benefits is warranted in view of the grant above of a permanent TDIU rating effective February 6, 2008. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.