Citation Nr: 21075940 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-04 375 DATE: December 21, 2021 ORDER Entitlement to a disability rating of 40 percent, and no higher, from April 28, 2015 through February 4, 2019 for prostate cancer, status post radical prostatectomy with associated surgical scar, is granted. Entitlement to a compensable disability rating for erectile dysfunction is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 10 percent prior to June 6, 2014 for coronary artery disease, status post myocardial infarction is remanded. Entitlement to a disability rating in excess of 30 percent prior to August 7, 2019 for coronary artery disease, status post myocardial infarction is remanded. Entitlement to a disability rating in excess of 60 percent from August 7, 2019 forward for coronary artery disease, status post myocardial infarction is remanded. Entitlement to a disability rating in excess of 40 percent for prostate cancer, status post radical prostatectomy with associated surgical scar is remanded. Entitlement to a TDIU prior to August 7, 2019 is remanded. FINDINGS OF FACT 1. From April 28, 2015, the date of service connection, through February 4, 2019, the Veteran's residual of prostate cancer, status post radical prostatectomy with associated surgical scar were manifested by voiding 4 to 5 times during the day, 6 to 7 times during the night, and requiring absorbent material that needed to be changed less than 2 times per day. 2. The Veteran has loss of erectile power but not actual external or internal deformity of the penis or impairment analogous to deformity of the penis. 3. It is reasonably shown that the Veteran's service-connected coronary artery disease and residuals of prostate cancer preclude him from securing or following a substantially gainful occupation from August 7, 2019 forward. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, and no higher, from April 28, 2015 through February 4, 2019 for prostate cancer, status post radical prostatectomy with associated surgical scar, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for an initial compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.115b, Diagnostic Code 7522. 3. The criteria for a TDIU as of August 7, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1964 to January 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board remanded this matter in June 2019 for additional development. The Veteran presented sworn testimony at a hearing before one of the undersigned Veterans Law Judges in February 2019. In March 2021, he gave testimony at a second hearing before another of the undersigned Veterans Law Judges. Transcripts of both hearings are of record. At the March 2021 hearing, the Veteran waived his right to testify before a third Veterans Law Judge pursuant to Arneson v. Shinseki, 24 Vet. App. 379 (2011) (a veteran must be provided the opportunity to testify before all members of a Board panel deciding the case). See, March 2021 Hr'g Tr. at 2. Increased Rating 1. Entitlement to a disability rating in excess of 20 percent prior to February 5, 2019 for prostate cancer, status post radical prostatectomy with associated surgical scar. At all times relevant to this appeal, the Veteran's residuals of prostate cancer are rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 for malignant neoplasms of the genitourinary system. DC 7528 provides a 100 percent disability rating for malignant neoplasms of the genitourinary system (such as the Veteran's prostate cancer). The criteria provide that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination being performed every six months. Any change in the assigned disability rating based upon such examinations are to be made subject to the provisions of 38 C.F.R. § 3.105 (e). DC 7528 further instructs that if there has been no local reoccurrence or metastasis, the disability is to be rated based upon residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Under the criteria for voiding dysfunction, disability requiring the use of absorbent materials which must be changed less than twice a day warrants a 20 percent disability rating. A 40 percent disability rating is assigned for disabilities marked by the wearing of absorbent materials which must be changed two to four times per day. A maximum schedular 60 percent disability rating is assigned for disabilities requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. See 38 C.F.R. § 4.115a. Under the criteria for urinary frequency, a 10 percent evaluation is appropriate when the condition is manifested by daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is appropriate when the condition is manifested by daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A maximum rating of 40 percent is appropriate when the condition is manifested by daytime voiding interval less than one hour, or; awakening to void five or more times per night. See 38 C.F.R. § 4.115a. Under the criteria for obstructed voiding, a 10 percent evaluation is appropriate when the condition is manifested by marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream), with any one or combination of: post void residuals greater than 150 cc; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; or stricture disease requiring periodic dilation every 2 to 3 months. A maximum rating of 30 percent is appropriate when the condition is manifested by urinary retention requiring intermittent or continuous catheterization. See 38 C.F.R. § 4.115a. The Veteran was afforded a VA prostate cancer examination in June 2015. It was noted that the Veteran was diagnosed with prostate cancer in 1999, as well as lower urinary tract symptoms and erectile dysfunction in 2000 following radical prostatectomy. A voiding dysfunction requiring absorbent material that needed to be changed less than 2 times per day was noted. A daytime voiding interval of between 1 and 2 hours was noted, as were hesitancy and slow stream. The Veteran testified at a February 2019 Board hearing that he has urinary leakage, uses pads that he changes 3 to 4 times per day. He reported using the bathroom 2 to 3 times per day and getting up 4 to 6 times per night and not being able to get back to sleep. He stated this makes him "groggy" and "tense" during the day. He further stated that he voided three times in three hours the morning of the hearing. In a February 2019 opinion, Dr. M. J. Feinstein, a private physician, stated that the Veteran's urinary symptoms had worsened and that he had to wear pads that he changes 3 to 4 times per day, voids every 60 to 90 minutes, and gets up 4 to 6 times per night to void. The Veteran testified at the March 2021 Board hearing that since 2014 he voids 4 to 5 times during the day and 6 to 7 times during the night. The Board notes that the Veteran is certainly competent to report the symptoms he experiences. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, the evidence of record shows that from April 28, 2015, the date of service connection, through February 4, 2019, the Veteran's residual of prostate cancer, status post radical prostatectomy with associated surgical scar were manifested by voiding 4 to 5 times during the day, 6 to 7 times during the night, and requiring absorbent material that needed to be changed less than 2 times per day. Further, the Board finds that from April 28, 2015 to February 4, 2019, the evidence of record does not demonstrate that the Veteran exhibited symptoms of urine leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times a day. Based on the above, the Board finds that from April 28, 2015 through April 4, 2019, the Veteran's prostate cancer, status post radical prostatectomy with associated surgical scar, was manifest by symptoms meeting the requirement for a percent disability rating, but no higher. 2. Entitlement to a compensable disability rating for erectile dysfunction. Initially, the Board notes that the Veteran's representative requested to withdraw this matter at the March 2021 Board hearing. See, March 2021 Hr'g Tr. at 8. However, in a May 2021 Post Hearing Memorandum the Veteran's representative requested that this claim be adjudicated based upon the evidence of record. As such, this matter is still properly before the Board. The Veteran contends that he is entitled to a compensable disability rating for erectile dysfunction. Because erectile dysfunction is not specifically listed in the rating schedule, it is rated by analogy based on a closely related disease or injury where the functions affected, anatomical localization, and symptoms are closely analogous. 38 C.F.R. § 4.20. The most closely aligned rating criteria for this disability are in Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 based on loss of use of a creative organ. 38 C.F.R. § 4.115b. The Veteran has already been assigned SMC on this basis. The evidence must show both deformity of the penis and loss of erectile power to warrant a 20 percent rating under Diagnostic Code 7522. The Court recently clarified that "deformity" for this purpose means either internal or external distortion of the penis. Williams v. Wilkie, 30 Vet. App. 134, 138 (2018). The Veteran was afforded a VA prostate cancer examination in June 2015. Erectile dysfunction was noted. It was further noted that the Veteran was not able to achieve an erection sufficient for penetration. Use of medication was not noted. The Veteran denied having penile deformity at the February 2019 Board hearing. Here, the Veteran experiences erectile dysfunction with loss of erectile power as demonstrated by the Veteran's difficulties achieving erections and he has been awarded SMC for loss of use of a creative organ based in part on these difficulties. However, the evidence of record does not indicate the Veteran suffers from an internal or external deformity or manifestations that are analogous to such deformity to warrant a compensable rating under Diagnostic Code 7522. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's erectile dysfunction warrants a compensable rating. 3. Entitlement to a total disability rating based on TDIU. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 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. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran has met the schedular requirement for TDIU as of August 7, 2019 when he was service connected for coronary artery disease at 60 percent, prostate cancer at 40 percent, and noncompensable erectile dysfunction for a combined disability rating of 80 percent. In a February 2019 opinion, Dr. M. J. Feinstein, a private physician, stated that due to his "significant cardiac disease as well as urinary incontinence with frequent voiding," the Veteran is not able to seek or maintain gainful employment. A July 2019 VA Form 21-8940 notes the Veteran has a high school diploma and one year of college. A VA contract medical opinion was obtained in May 2020. Upon a review of the record, the examiner noted that the Veteran would be impacted at work from having to change pads and be near a restroom. It was further noted that this would distract him from completing tasks in a timely manner. A VA contract medical opinion was obtained in May 2020. Upon review of the record, a contract examiner noted the Veteran suffered myocardial infarctions with stent placements in 2009 and 2017. It was noted that an interview based METs assessment showed 3 to 5 METs, which is consistent with light yard work, mowing the lawn with a power mower, and brisk walking at 4 miles per hour. It was noted that the METs level was due solely to the Veteran's heart condition. It was noted that his heart condition would make it difficult for the Veteran to perform physical work, but no restrictions for sedentary work. The Veteran testified at the March 2021 Board hearing that in 1997/1998 he had worked for 25 years as a glue mixer. He then stated that in 2005 he became a personal care assistant and that while doing this he would have to go to the bathroom 5 to 6 times per day. He then stated that he quit this job in 2011 due to the stress and having to constantly go to the bathroom. Based on the above, the Board finds that the Veteran has been unable to secure and maintain substantially gainful employment due to the effects of his service-connected coronary artery disease and residuals of prostate cancer. The evidence shows that the Veteran's career consisted predominantly of factory work followed by work as a personal care assistant. The Board notes that the Veteran does not appear to have any job skills that would transfer to a sedentary position. In light of the evidence, the Board finds that the Veteran is unemployable due to his service-connected disabilities, and that a grant of TDIU is warranted as of August 7, 2019. Geib. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent prior to June 6, 2014 for coronary artery disease, status post myocardial infarction, is remanded. 2. Entitlement to a disability rating in excess of 30 percent prior to August 7, 2019 for coronary artery disease, status post myocardial infarction, is remanded. 3. Entitlement to a disability rating in excess of 60 percent from August 7, 2019 forward for coronary artery disease, status post myocardial infarction, is remanded. Following the issuance of the supplemental statement of the case (SSOC) in December 2019, in July 2021, a May 2020 VA contract medical opinion based on a review of the record was associated with the claims file. There is no waiver of AOJ consideration of this evidence. As such, the Board finds that a remand is necessary for the AOJ to consider this new VA medical evidence, readjudicate the increased rating claim, and provide notice with an opportunity to respond to the Veteran and his current representative. 38 C.F.R. § 19.37(b). Further, the Board notes that there is conflicting medical evidence regarding the severity of the Veteran's coronary artery disease. The Veteran was afforded a VA heart conditions examination in August 2019. The Veteran reported having stents placed in 2017 and 2018. He denied chest, endorsed occasional tightness, and stated he had not taken nitro in the prior 6 months. Interview-based METs was estimated as 3 to 5, which is consistent with light yard work, mowing the lawn with a power mower, and brisk walking. The examiner stated that the limitation in METs level is due to multiple medical conditions, including his heart condition, and that it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The examiner then stated that the Veteran's heart is pumping normally and that, as such, would have no impact on his physical condition or occupational functioning. A VA contract medical opinion was obtained in May 2020. Upon review of the record, a contract examiner noted the Veteran suffered myocardial infarctions with stent placements in 2009 and 2017. It was noted that an interview based METs assessment showed 3 to 5 METs, which is consistent with light yard work, mowing the lawn with a power mower, and brisk walking at 4 miles per hour. It was noted that the METs level was due solely to the Veteran's heart condition and that the Veteran reported dyspnea, fatigue, and angina. In an April 2021 medical opinion, Dr. D. Graf, a private orthopaedic surgeon, cited several select medical records, and opined that the Veteran should receive a 100 percent disability rating for his coronary artery disease "by reason of dyspnea and fatigue and progressive restriction in functional capacity." The Board notes that in private treatment records from Dr. C. J. Berger, the Veteran routinely denied experiencing dyspnea, shortness of breath, and chest pain. Based on the above, a remand for a new VA examination and to obtain up to date treatment records is required. 4. Entitlement to a disability rating in excess of 40 percent for prostate cancer, status post radical prostatectomy with associated surgical scar, is remanded. Following the issuance of the supplemental statement of the case (SSOC) in December 2019, in July 2021, a May 2020 VA contract medical opinion based on a review of the record was associated with the claims file. There is no waiver of AOJ consideration of this evidence. As such, the Board finds that a remand is necessary for the AOJ to consider this new VA medical evidence. Further, in May 2021, a private medical opinion was received in which it was argued that the Veteran's symptoms are that of the 60 percent level. As this opinion differs from that of the July 2021 opinion, the Board finds that an examination to determine the current symptoms and severity of the Veteran's residuals of prostate cancer is required. 5. Entitlement to a separate rating for a sleep disorder as a manifestation of service-connected prostate cancer, status post radical prostatectomy with associated surgical scar, is remanded. During the March 2021 hearing, the Veteran testified that his awakening numerous times at night to urinate makes it difficult for him to get back to sleep, rendering him fatigued the next day. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id. Pursuant to Morgan, the Board finds that it is essential to the rate, on a schedular basis, all of the manifestations of the Veteran's service-connected prostate cancer, status post radical prostatectomy, in this case, to include any sleep manifestations of the Veteran's service-connected disability. As such, on remand, a medical opinion should be obtained to determine any sleep disorder diagnoses the Veteran may have and whether they are proximately due to his service-connected prostate cancer, status post radical prostatectomy. Morgan (explaining that VA's duty to maximize benefits may require it to consider secondary service connection as part of an increased rating claim); see also, Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). 6. Entitlement to a TDIU prior to August 7, 2019 is remanded. The Board notes that prior to August 7, 2019 the Veteran does not meet the schedular requirement for a TDIU. Hovever, because a decision on the remanded issues of increased ratings for coronary artery disease and prostate cancer could significantly impact a decision on the issue of TDIU prior to August 7, 2019, the issues are inextricably intertwined and a remand is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. C. J. Berger. Make two requests for the authorized records from Dr. C. J. Berger unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease, status post myocardial infarction. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected prostate cancer, status post radical prostatectomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. Schedule the Veteran for an examination to determine whether it is at least as likely as not that the Veteran's prostate cancer, status post radical prostatectomy, results in sleep impairment. The examiner must identify all sleep symptoms and disabilities found to be present. The examiner must state whether any sleep disorder was caused, aggravated, or a manifestation of the Veteran's service-connected prostate cancer, status post radical prostatectomy. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals H.M. WALKER Veterans Law Judge Board of Veterans' Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.