Citation Nr: 21077151 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-05 645 DATE: December 28, 2021 ORDER Entitlement to an initial compensable rating from January 29, 2014, to August 12, 2021, and an initial rating greater than 40 percent thereafter, for prostate cancer and its residuals is denied. Entitlement to SMC under 38 U.S.C. § 1114(s) effective September 17, 2015, is granted. FINDINGS OF FACT 1. The record evidence shows that, effective from January 29, 2014 to August 12, 2021, the Veteran's prostate cancer, which was in remission and did not require treatment, is manifested by, at worst, voiding obstruction which is less than marked and urinary leakage requiring the occasional use of pads. 2. The record evidence shows that, effective August 12, 2021, the Veteran's residuals of prostate cancer are manifested by, at worst, urinary frequency with a daytime voiding interval of less than one hour. 3. The record evidence shows that, from January 29, 2014 to September 17, 2015, the Veteran did not meet the schedular criteria for SMC under 38 U.S.C. § 1114(s) and was not permanently housebound by reason of service-connected disability or disabilities. 4. The record evidence shows that, effective September 17, 2015, the Veteran met the schedular criteria for SMC under 38 U.S.C. § 1114(s). CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating from January 29, 2014, to August 12, 2021, and an initial rating greater than 40 percent thereafter, for prostate cancer and its residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.3, 4.115a, 4.115b Diagnostic Code (DC) 7528. 2. The criteria for SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) effective September 17, 2015, have been met. 38 U.S.C. §§ 1114(s), 5107, 5121; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 VA Regional Office (RO) rating decision which granted service connection for prostate cancer with a 100 percent rating effective June 10, 2013, and a zero percent rating effective January 29, 2014. The decision also granted entitlement to SMC under 38 U.S.C. § 1114(s) from June 10, 2013 to January 29, 2014. The Veteran filed a notice of disagreement in August 2014. He perfected an appeal in January 2016 and requested a hearing before the Board. He did not attend his scheduled hearing. See 38 C.F.R. § 20.704. An October 2019 Board decision denied entitlement to SMC beyond January 29, 2014. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Joint Motion for Partial Remand (Joint Motion), both parties to the Joint Motion asked the Court to vacate and remand the October 2019 Board decision. Both parties to the Joint Motion also argued to the Court that the Board erred in its October 2019 decision when it did not address whether the propriety of the rating reduction from 100 percent to zero percent effective January 29, 2014, for the Veteran's service-connected prostate cancer. The Court granted the Joint Motion. In a July 2021 remand, the Board noted that, in order to comply with the terms of the Joint Motion, it assumed jurisdiction of an initial rating claim for prostate cancer as part and parcel of the SMC claim. The Board then remanded the issues for further action. The Veteran subsequently was granted a 40 percent rating effective August 12, 2021, for prostate cancer residuals. Having reviewed the record evidence, the Board finds that the claims on appeal should be characterized as stated above. Increased Rating Entitlement to an initial compensable rating from January 29, 2014, to August 12, 2021, and an initial rating greater than 40 percent thereafter, for prostate cancer and its residuals The Veteran was diagnosed with prostate cancer in May 2013. He had a radical prostatectomy in July 2013. As noted above, the June 2014 RO decision granted service connection for prostate cancer, evaluated as 100 percent until January 29, 2014, and noncompensable until August 12, 2021, when a 40 percent rating was assigned for the Veteran's residuals. The Board first will address the propriety of the rating reduction from 100 percent to noncompensable effective January 29, 2014, for the Veteran's prostate cancer. The Board notes initially that the provisions of 38 C.F.R. § 3.105 (e) are not applicable to this claim. The Board next acknowledges the Veteran's contention in March 2015 that his medical provider stated that his PSA will have to be continually checked for the next 10 years. The Board notes in this regard that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating will end as of the date a Veteran received final treatment for cancer, the cessation of treatment for the cancer itself, as opposed to treatment for residuals secondary to the cancer or further treatment required as a result of the treatment for the disease. Tatum v. Shinseki, 26 Vet. App. 443, 447-48 (2014). The Board finds that the Veteran's treatment for prostate cancer ceased in July 2013 so the cessation of his 100 percent rating at that time was proper. The Board observes that the Veteran's continued PSA checks do not constitute continued treatment for prostate cancer as they are not chemotherapy, surgical treatment, x-rays, or a therapeutic procedure. The April 2014 VA examination stated that the Veteran's prostate cancer was in remission. The April 2014 examiner also noted that the Veteran had completed his treatment for prostate cancer and was in watchful waiting status. In other words, the record does not show active prostate cancer with recurrence since the Veteran's radical prostatectomy in July 2013 or other treatment for this disease since that date. Pursuant to DC 7528, the cessation of the 100 percent rating took effect 6 months after the end of his treatment in July 2013 or on January 29, 2014. As such, the rating reduction for the Veteran's service-connected prostate cancer was proper. The Board also considered whether a higher rating is warranted for service-connected prostate cancer residuals such as renal dysfunction or voiding dysfunction from January 29, 2014. The April 2014 VA prostate cancer examination indicated that the Veteran did not have voiding dysfunction or renal dysfunction. The Board notes that service connection currently is in effect for erectile dysfunction evaluated as zero percent disabling. Both parties to the Joint Motion noted that the Veteran was not challenging the initial zero percent rating assigned for his service-connected erectile dysfunction. An April 2015 VA examination found that the Veteran had voiding dysfunction with urine leakage causing him to occasionally wear pads. There also were signs of obstructed voiding with unmarked hesitancy and a slow, weak stream, with a non-marked decreased force of stream. There still was no renal dysfunction present. And he has not alleged that he experiences renal dysfunction as a residual of his service-connected prostate cancer. With regard to voiding dysfunction the Veteran's April 2015 VA examination findings do not warrant a compensable rating as his obstructed voiding symptoms were not marked. And his urinary leakage did not require the wearing of absorbent materials which must be changed less than 2 times a day. The medical evidence of record, to include VA treatment records, otherwise does not show more frequent urination or more severe leakage prior to August 12, 2021. As such, the Board finds that an initial compensable rating for residuals of prostate cancer from January 29, 2014, to August 12, 2021, is not warranted. An August 12, 2021, VA examination showed the Veteran was not receiving current treatment for prostate cancer. Although there was no renal dysfunction, the examiner noted voiding dysfunction with increased urinary frequency of a daytime voiding interval of less than an hour without obstructed voiding. The urinary frequency noted at this examination most closely reflects the criteria for a 40 percent rating for prostate cancer residuals. The Board notes that 40 percent is the maximum rating available for urinary frequency. The only other criteria under voiding dysfunction which would allow a disability rating greater than 40 percent is urine leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times a day. The medical evidence of record does not show the use of an appliance or more than the occasional use of absorbent materials. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 40 percent effective August 12, 2021, for his service-connected prostate cancer residuals. In summary, the Board finds that an initial rating greater than 40 percent effective August 12, 2021, for prostate cancer residuals is not warranted. Entitlement to SMC under 38 U.S.C. § 1114(s) The Board next finds that the Veteran is entitled to SMC under 38 U.S.C. § 1114(s) effective September 17, 2015. The record evidence shows that he did not meet the schedular criteria for SMC under § 1114(s) prior to this date. He asserts that he is entitled to SMC under 38 U.S.C. § 1114(s) due to the presence of a single service-connected disability rated at 100 percent and a separate disability or disabilities rated at 60 percent or more and not based on housebound status. He submitted a VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance completed by his nurse practitioner in support of this claim. This examination shows that he has no limitations of motion. He is able to feed himself and prepare his own meals. He is not blind. And he does not require nursing home care or other assistance. In other words, this examination does not suggest that he has any limitations which render him housebound. He also has not asserted that he was housebound at any time during the appeal period solely as a result of his service-connected disabilities. And his treatment records do not show that he is unable to leave his home solely as a result of his service-connected disabilities. Therefore, the Board finds that entitlement to SMC under 38 U.S.C. § 1114(s)(2) is not warranted. The record evidence shows that the Veteran has a TDIU based on a single service-connected psychiatric disability for the entire period on appeal. Although the RO stated on the most recent "Rating Codesheet" that the Veteran's TDIU ended in January 2020, this benefit has not been discontinued. Thus, entitlement to SMC under § 1114(s) requires the existence of an additional disability or disabilities rated at 60 percent. The Board notes that, effective January 29, 2014, in addition to his service-connected psychiatric disability, service connection is in effect for diabetes mellitus, evaluated as 10 percent disabling from September 17, 2015, and as 20 percent disabling from July 22, 2019, bilateral lower extremity diabetic peripheral neuropathy of the anterior crural nerve evaluated as 10 percent disabling for each lower extremity from September 17, 2015, right upper extremity diabetic peripheral neuropathy evaluated as zero percent disabling from September 17, 2015 and as 20 percent disabling from January 20, 2020, left upper extremity diabetic peripheral neuropathy evaluated as zero percent disabling from September 17, 2015 and as 30 percent disabling from January 20, 2020, bilateral lower extremity diabetic peripheral neuropathy of the external popliteal nerve evaluated as 20 percent disabling from September 17, 2015 for each lower extremity, prostate cancer residuals evaluated as noncompensable from January 29, 2014 and as 40 percent disabling from August 12, 2021, and for erectile dysfunction, hypertension, and bilateral lower extremity peripheral neuropathy of the external cutaneous nerves, each evaluated as zero percent disabling. The record evidence shows that, between January 29, 2014, and September 17, 2015, the combined disability rating for compensation (excluding the service-connected psychiatric disability) is 10 percent due to a service-connected right leg shrapnel injury evaluated as 10 percent disabling effective March 25, 2002. Because he does not have a separate 60 percent rating for any additional disability or disabilities in addition to his service-connected psychiatric disability, entitlement to SMC under 38 U.S.C. § 1114(s) between January 29, 2014, and September 17, 2015, is not warranted. In contrast, the record evidence shows that, effective September 17, 2015, the Veteran's combined disability rating (excluding the service-connected psychiatric disability) is at least 60 percent. In summary, as the Veteran has a TDIU based on a single service-connected psychiatric disability and additional disabilities with at least a 60 percent rating effective September 17, 2015, the Board finds that entitlement to SMC under 38 U.S.C. § 1114(s) effective September 17, 2015, is warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.