Citation Nr: 21074985
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 16-40 361
DATE: December 16, 2021

ORDER

The reduction of the disability rating for residuals of prostate cancer from 100 percent to 40 percent, effective March 1, 2016, was proper; restoration of a 100 percent rating for residuals of prostate cancer is denied.

Entitlement to a 60 percent rating for the residuals of prostate cancer for the period from March 1, 2016 to February 27, 2017, is granted.

Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU), for the period prior to November 16, 2017, is granted, subject to controlling regulations governing the payment of monetary awards.

FINDINGS OF FACT

1. The discontinuance of the 100 percent rating for residuals of prostate cancer, effective March 1, 2016, is not a formal rating reduction as the "reduction" was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528.

2. The procedural requirements of 38 C.F.R. § 3.105 (e) were properly and appropriately completed in this case.

3. During the period on appeal, from March 1, 2016 to February 27, 2017, the Veteran did not have local reoccurrence or metastasis of prostate cancer or treatment involving surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures.

4. From March 1, 2016 to February 27, 2017, the Veteran's service-connected residuals of prostate cancer was manifested by no local reoccurrence or metastasis but with urinary incontinence requiring the wearing of absorbent materials which must be changed more than four times per day.

5. For the period prior to November 16, 2017, the evidence reflects that the Veteran's service-connected disabilities were of such nature and severity as to prevent him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The discontinuance of the 100 percent evaluation, effective March 1, 2016, for residuals of prostate cancer, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, DC 7528.

2. The criteria for a 60 percent rating for the residuals of prostate cancer for the period from March 1, 2016, to February 27, 2017, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.115b, DC 7527, 7528.

3. Prior to November 16, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active naval service from October 1965 to August 1969, including service in the Republic of Vietnam. 

This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a December 2015 rating decision in which the Agency of Original Jurisdiction (AOJ) reduced the Veteran's rating for prostate cancer from 100 percent to 40 percent, effective March 1, 2016. 

The Veteran indicated in his August 2016 VA Form 9 that he wished to participate in a hearing before a Veterans Law Judge. In July 2019, he filed a statement withdrawing his request for a formal hearing. As such, the Board deems the Veteran's hearing request withdrawn. 

The Veteran's appeal was previously before the Board in June 2021 when it was remanded for additional development. The requested development was completed, and the case has now returned to the Board for adjudication.

While pending appeal, a March 2018 rating decision later increased the Veteran's rating for prostate cancer to 60 percent from February 27, 2017. Subsequently, following the Board's June 2021 remand, the AOJ assigned a 100 percent rating effective February 27, 2017.  The Veteran continues his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The issue of total disability unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Relevant Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3.

In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical, as well as industrial history, is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

A claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found a practice known as "staged" ratings.

Diseases of the genitourinary system generally result in disabilities relating to renal or voiding dysfunctions, infections, or a combination thereof. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115A. 

Diagnostic Code 7527 provides that prostate gland-related disabilities should be evaluated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115a provides that a 40 percent rating for a voiding dysfunction is warranted where a voiding dysfunction requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is warranted for voiding dysfunctions requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a provides a maximum rating of 30 percent for urinary tract infection where recurrent symptomatic infection requires drainage/frequent hospitalization, defined as greater than two times per year, and/or requiring continuous intensive management.

Under DC 7528 a 100 percent rating is provided for malignant neoplasms of the genitourinary system. The ratings criteria note 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 upon that or 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, VA will rate the condition on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115B, DC 7528. 

Where renal dysfunction is predominant, a 100 percent rating will be provided for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating will be assigned for renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent rating is warranted for renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling. A 30 percent evaluation is assigned for renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling. Finally, a noncompensable rating is warranted for renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension that is noncompensable. 38 C.F.R. § 4.115A.

If voiding dysfunction is predominant, particular conditions are to be rated as urine leakage, urinary frequency, or obstructed voiding. 

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 4 times per day (60 percent); requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent); and requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent). 38 C.F.R. § 4.115a.

For urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night (40 percent); with daytime voiding interval between one and two hours, or; awakening to void three to four times per night (20 percent); and with daytime voiding interval between two and three hours, or; awakening to void two times per night (10 percent). Id.

For obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization (30 percent); and with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc, 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec), 3. Recurrent urinary tract infections secondary to obstruction, and 4. Stricture disease requiring periodic dilatation every 2 to 3 months (10 percent). Id.

1. Whether the rating "reduction" from 100 percent to 40 percent, on March 1, 2016, for service-connected residuals of prostate cancer was proper.

2. Entitlement to a rating in excess of 40 percent for residuals of prostate cancer from March 1, 2016, to February 27, 2017.

The Veteran asserts that the RO's reduction of his 100 percent rating for residuals of prostate cancer to 40 percent disabling was improper. Alternatively, he asserts that his current 40 percent rating is insufficient. For clarity, the relevant period on appeal is from March 1, 2016, to February 27, 2017, as it is the sole period where the Veteran remains in receipt of a rating less than the maximum 100 percent schedular rating. For the period prior to, and after, March 1, 2016, to February 27, 2017, the Veteran was rated under DC 7582. From March 1, 2016, to February 27, 2017, and thereafter he was rated under 7527.

As to reduction, the Veteran, by way of his representative, argues that his 100 percent rating should be restored effective March 1, 2016. In brief, he asserts that the RO's rating reduction from 100 to 40 percent was improper as he did not show actual improvement in his ability to function under the ordinary conditions of life and work. As to increase rating, he contends his current 40 percent rating is insufficient as his symptoms more closely resemble the criteria associated with a 60 percent rating. Following consideration of the record, the Board finds the "reduction" to be proper, however, entitlement to an increase 60 percent rating is warranted for the entire period on appeal.

As to reduction, service connection was established for prostate cancer, effective June 17, 2013, and evaluated as 100 percent. Thereafter, a December 2015 rating decision reduced the Veteran's rating for residuals of prostate cancer from 100 to 40 percent, under DC 7528, effective March 1, 2016. The Veteran disagrees with the rating reduction and contends his symptoms warrant a rating more than 40 percent for voiding dysfunction.

As stated, prostate cancer rated under DC 7528 provides a 100 percent rating for malignant neoplasms of the genitourinary system. However, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent continues with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, the disability is rated as voiding dysfunction or renal dysfunction, whichever residual is predominant. 38 C.F.R. § 4.115b, DC 7528. Any change in disability rating based upon that or any subsequent examination, shall be subject to the provisions of 38 C.F.R. § 3.105 (e).

Pursuant to the directives of DC 7528, the Veteran was provided a February 2015 VA examination. Following examination, the Veteran's prostate cancer was deemed in remission. The RO notified the Veteran of the proposed reduction of his 100 percent disability rating, his rights to a personal hearing, and his 60-day period to respond. In response, the Veteran submitted a letter from his private physician, Dr. R.M., in February 2015. Dr. R.M. noted that the Veteran's prostate cancer was in remission but that he was at high risk of reoccurrence. The Veteran also requested, and participated in, a hearing with a Decision Review Officer (DRO) in September 2015. During the hearing, the Veteran did not deny that his condition was in remission, but instead discussed difficulties with voiding. Treatment records submitted by the Veteran in September 2015, and obtained by VA in October 2015, document his condition was in remission. After taking into consideration the Veteran's assertions and medical records, the AOJ reduced the disability rating for the Veteran's prostate cancer residuals from 100 percent to 40 percent disabling, effective March 1, 2016. The reduction action was more than 60 days from the date of the letter notifying him of the proposed action. Thus, the RO properly carried out the procedural requirements under 38 C.F.R. § 3.105 (e) for reduction of the rating.

Moreover, upon review of the record, the Board finds there has been no local reoccurrence or metastasis of prostate cancer or treatment involving surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures. Such a finding is supported by the complete evidence of record from the period in question, which confirms the Veteran's condition was in remission with various forms of treatment ending in 2013/2014. See February 2015 VA Examination, September 2015 DRO Hearing Transcript, February 2015 Dr. R.M. Correspondence, and Private/VA Treatment Records. Therefore, the rating reduction was proper, and restoration of the 100 percent rating for prostate cancer is not warranted.

That said, the Board acknowledges the representative's argument that the December 2015 reduction was improper because the record did not show actual and sustained improvement as required under 38 C.F.R. § 3.344. Specifically, his representative argues that despite remission of the Veteran's cancer the record lacked evidence of an "improvement to function under the ordinary conditions of life and work."  The Board does not find the argument persuasive.  For clarity, the provisions of 38 C.F.R. § 4.115b, DC 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the RO's action was not a true "rating reduction," as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992), (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code involved contained a temporal element for that 100 percent rating).

In the present case, DC 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, referable to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In other words, it is not a formal reduction case because of the temporal element of DC 7528. In short, the rating reduction in this case was procedural in nature and by operation of law. The Board only has to determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under DC 7528. As discussed above, the Board finds that the procedural requirements were properly followed in this case and the "reduction" was by operation of law under DC 7528.

Notwithstanding the above, the Board agrees that the Veteran's cancer residuals were likely substantially severe. However, the Board finds that the most appropriate avenue for relief is increasing the Veteran's current 40 percent rating to represent the severity of his condition.  In that regard, the Board finds that an increased 60 percent rating, for the Veteran's prostate cancer residuals, is warranted from March 1, 2016, to February 27, 2017. 

In relevant part, there is evidence both for and against the claim. To that end, on February 2015 VA examination, the examiner noted that the Veteran's prostate cancer was in remission and that the diagnosis had changed to urinary incontinence/urinary frequency/erectile dysfunction. The examiner indicated that the Veteran experienced urine leakage requiring the wearing of absorbent material changed two to four times a day, as well as urinary frequency with daytime voiding between one and two hours, and nighttime voiding five or more times. Comparatively, on September 2015 hearing, the Veteran testified that his absorbent materials must be changed at least four to five times each day due to his urinary incontinence.  The Veteran is competent to testify as to his observable symptoms and how they impact his life and daily functioning. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). He has also consistently continued to report that his symptoms are more equivalent to a 60 percent rating. More importantly, his reports have not been contradicted by his private care providers.  To the contrary, Dr. R.M. essentially submitted correspondence in support of his assertions in February 2017. 

Accordingly, the Board finds the evidence to be in equipoise such as to afford the Veteran the benefit of the doubt and award a 60 percent rating for his service-connected residuals of prostate cancer from March 1, 2016 to February 27, 2017. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. That said, the Veteran has previously indicated that symptoms warranted a 60 percent rating. Nevertheless, to the extent that a rating in excess of 60 percent could be argued, such a rating is not warranted. As indicated, a rating of 80 or 100 percent is warranted where the residuals of prostate cancer result predominantly in renal dysfunction. See 38 C.F.R. § 4.115A. The Veteran's VA examinations and private treatment records indicate that the Veteran's residuals of prostate cancer manifest predominantly as voiding dysfunction, not renal dysfunction. Given the above, the Board finds that a rating of 60 percent, but no higher, for residuals of prostate cancer is warranted from March 1, 2016 to February 27, 2017.

TDIU

TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a); see also Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc) ("Total disability ratings will be assigned '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.'" (quoting 38 C.F.R. § 3.340(a)).

A veteran is eligible for TDIU on a schedular basis under the following circumstances: if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Significantly, disabilities of one or both lower extremities will be considered as one disability for the purpose of one 60 percent disability. 38 C.F.R. § 4.16(a)(1).

3. Entitlement to a TDIU rating for the period prior to November 16, 2017.

As indicated above, the record, to include examination and treatment records, has raised the issue of entitlement to a TDIU. Following consideration of the evidence, entitlement is granted. 

For clarity, throughout the period on appeal the Veteran has met the schedular requirements for TDIU.  In that regard, as indicated, the Veteran is in receipt of a 100 percent rating for prostate cancer residuals from June 17, 2013 to March 1, 2016; a 60 percent rating from March 1, 2016 to February 2017; and a 100 percent rating thereafter.  He is also in receipt of service connection for a mood disorder with a 30 percent rating from September 29, 2015, and 50 percent from November 16, 2017. Finally, the Veteran has been rated as noncompensable for bilateral hearing loss and erectile dysfunction, as well as, 10 percent disabled for tinnitus from July 22, 2014.

That said, the existence of a 100 percent disability rating does not always render the issue of TDIU moot. A TDIU rating qualifies as a 100 percent rating for the purposes of determining eligibility for SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350. Bradley v. Peake, 22 Vet. App. 280, 294 (2008); 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. 280, 294 (2008). In the instant case, the Veteran has already been granted entitlement to SMC from November 16, 2017. The Board thus concludes that the issue of entitlement to TDIU is moot for those periods during which both a 100 percent rating and entitlement to SMC are already in effect. Therefore, the period on appeal with respect to the Veteran's TDIU claim is that prior to November 16, 2017.

Turning to the record, as to employment and education, the Veteran is in receipt of a high school diploma, and previously worked as a real estate appraiser and salesman. Records document that the Veteran has been retired since approximately 2010.

What remains is ascertaining whether the Veteran's service-connected disabilities rendered him unemployable. The Board finds that they do. As indicated above, the Veteran's prostate symptomatology requires changing of absorbent pads well in excess of four times a day. His private physician also specified that he has remained incontinent throughout the period on appeal.  Additionally, an August 2021 VA examiner clarified that his level of urinary impairment equates to needing to be constantly near the bathroom. As to his mood disorder, per a November 2015 VA examiner, it caused symptoms of depression, anxiety, disturbances of mood and motivation, anhedonia, reduced energy, sadness, and social withdrawal. The VA examiner also opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. Beyond the above, are the symptoms associated with the Veteran's other service-connected disabilities including impaired hearing.

The Board finds the evidence is persuasive that the Veteran has been incapable of substantially gainful employment due to his service-connected disabilities during the relevant period on appeal. First, as stated above, the Veteran generally had difficulty with work efficiency and completing occupational tasks associated with his mood disorder. His condition was only worsened by his unpredictable periods of low motivation, depression, anxiety, and social withdrawal. Moreover, his ability to properly function in a work setting was further diminished by his frequent need to change his absorbent materials, which reasonably would require repeat breaks during the day.  He also would need to have a position with close access to the bathroom. Beyond the above, are the impairments associated with his other service-connected disabilities which include decreased hearing acuity. The Board finds these collective symptoms to be severe enough to have precluded the Veteran from obtaining and maintaining substantially gainful employment in any field. Moreover, the Board finds it highly unlikely that the Veteran would have been able to find substantially gainful employment when pairing his unpredictable symptomatology with his extremely limited educational history and an employment history which required active consistent listening and attention.

Acknowledgment is given to the record containing evidence that does not support TDIU; however, the Board finds it highly likely that the Veteran's physical and psychological impairments, would have been a consistent hinderance to his ability to concentrate and thrive in a work environment. Moreover, the collective record is strongly suggestive supports that his psychiatric symptoms would only worsen under a regulated environment. Entitlement to a TDIU for the period prior to November 16, 2017, is granted.

Finally, the issuance of a TDIU in turn raises the issue of entitlement to SMC. In that regard, the Board has considered the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court held that SMC might be warranted when a separate award of a TDIU rating, predicated on a single disability (perhaps not ratable at the schedular 100 percent level), is considered together with another disability separately rated at 60 percent or more. 38 U.S.C. § 1114 (s); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). However, in the instant case, the above grant of TDIU was predicated on the collective effect of the Veteran's service-connected disabilities. Moreover, the record does not contain lay or medical evidence that the Veteran was rendered housebound. Therefore, entitlement to SMC benefits under Bradley and Bowie is not applicable.

 

J. L. BURROUGHS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R.M. Sachs, 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.