Citation Nr: A21019488 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210129-132917 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 60 percent for residuals of prostate cancer is denied. REMANDED Entitlement to service connection for acquired psychiatric condition secondary to service-connected residuals of prostate cancer is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On and after March 1, 2015, the Veteran did not experience a local reoccurrence or metastasis of his prostate cancer. 2. For the entire period on appeal, the Veteran's prostate cancer residuals were predominantly manifested by urine leakage requiring the wearing of absorbent materials which must be changed more than four times per day. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for residuals of prostate cancer as of March 1, 2015 are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Codes (DC) 7528-7527. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1965 to December 1967. In November 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the October 2019 Supplemental Statement of the Case (SSOC). In February 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the October 2019 SSOC. In January 2021, the Veteran filed a decision review request and elected direct review. 38 C.F.R. § 19.2(d). The Board may only consider the evidence of record at the time of the initial decision, which is the October 2019 SSOC. 1. Entitlement to a rating in excess of 60 percent for residuals of prostate cancer The Veteran's residuals of prostate cancer disability are currently rated as 60 percent disabling as of March 1, 2015, under DC 7528, for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Prostate cancer is evaluated under 38 C.F.R. § 4.115b, DC 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, at which time the Veteran is to be provided a VA examination. 38 C.F.R. § 4.115b, DC 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. The Veteran underwent a prostatectomy for treatment of prostate cancer in May 2011. In February 2014 he attended a VA examination where the examiner reported that the Veteran's prostate cancer was in remission. Based on these findings a February 2014 rating decision proposed to reduce the Veteran's 100 percent rating for prostate cancer. A December 2014 rating decision reduced the rating to 40 percent for residuals of prostate cancer effective March 1, 2015. Subsequently, a June 2015 rating decision increased the Veteran's residuals of prostate cancer rating to 60 percent effective March 1, 2015. Pursuant to DC 7528, six months after treatment ends the VA will provide an examination to assess the Veteran's condition and either continue the 100 percent rating if there is local reoccurrence or metastasis of the prostate cancer or provide the Veteran notice of discontinuance of the 100 percent rating. The Board notes that the discontinuance of a 100 percent rating under DC 7528 is not a rating reduction subject to the requirements of 38 C.F.R. § 3.343 as the plain language of the DC governs when the 100 percent rating will no longer apply. See Foster v. McDonough, No. 19-7442, 2021 U.S. App. Vet. Claims LEXIS 1848, (Vet. App. Oct. 20, 2021). The Veteran contends that he is entitled to the 100 percent rating because there is no way to know if the cancer is gone as it could be somewhere else in the body. While, as noted in the medical records, prostate cancer may reoccur up to 15 years post-treatment, the medical records reveal no evidence of a recurrence or metastasis. Accordingly, the Veteran is not entitled to a 100 percent disability rating at any time during the appeal period. Instead, for the entire rating period, the Veteran's disability is properly rated based on residual symptoms of voiding dysfunction as it is predominant. See 38 C.F.R. § 4.115b, DC 7528. Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Under urinary frequency conditions, a maximum 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. For obstructed voiding conditions, a maximum 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. Renal dysfunction is also evaluated under 38 C.F.R. § 4.115a. A 100 percent disability rating is warranted for regular dialysis or such dysfunction that precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, a BUN [blood urea nitrogen] level more than 80 mg% [milligrams of urea nitrogen per 100 milliliters of blood]; or a creatine level more than 8mg% [milligrams of serum creatine per 100 milliliters of blood]; or, markedly decreased function of the kidney or other organ systems, especially cardiovascular. An 80 percent disability rating requires persistent edema and albuminuria with a BUN level of 40mg to 80mg; or a creatine level of 4mg to 8mg; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion under DC 7101. Id. The Veteran is in receipt of the maximum 60 percent schedular rating for voiding dysfunction. As higher rating is not available under ratings for urinary frequency or obstructed voiding as the maximum ratings are 40 and 30 percent. 38 C.F.R. § 4.115a. While disability ratings greater than 60 percent are available for prostate cancer residuals when renal dysfunction predominates, the record does not reveal renal dysfunction. Review of both the medical and lay evidence establish that voiding dysfunction is predominant and the VA examinations consistently report no renal dysfunction. Therefore, a higher rating based on renal dysfunction is not warranted. Id. Accordingly, the criteria for a rating higher than 60 percent are not met. REASONS FOR REMAND] 1. Entitlement to service connection for depression and/or anxiety secondary to service-connected residuals of prostate cancer The Board finds that the Veteran's lay statements of record reasonably raised the theory that the Veteran has an acquired psychiatric condition that is secondary to his residuals of prostate cancer disability. The United States Court of Appeals for Veterans Claims determined that VA is required to develop and adjudicate related claims for secondary service connection for non-voiding and non-renal residuals that are reasonably raised during the adjudication of a formally initiated claim for an increased rating for the service-connected prostate cancer disability, pursuant to 38 C.F.R. § 3.155(d)(2). Bailey v. Wilkie, 33 Vet. App. 188, 191 (2021). As the claim for secondary service connection was reasonably raised by the record prior to the October 2019 SSOC on appeal, the Board finds a pre-decisional duty to assist error. Additionally, prior to the decision on appeal, the evidence of record met the low threshold as set forth in McLendon to secure a VA medical opinion to address the theory of entitlement to secondary service connection for acquired psychiatric condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a remand for a VA medical opinion to determine the etiology of any acquired psychiatric conditions is warranted. 2. TDIU The issue of entitlement to TDIU is remanded to correct a duty to assist error that occurred prior to the October 2019 decision on appeal. Before the Veteran opted into the Appeals Modernization Act (AMA), a March 2019 Board decision remanded the issue of TDIU. The Veteran provided statements that his medications from his service-connected conditions resulted in side effects that render him unemployable. The remand directed the VA examiner to address the Veteran's contentions and identify the symptoms related to his service-connected coronary artery disease; however, the examiner failed to identify or discuss the side effects of his medication, which the Veteran alleges renders him unemployable. Therefore, a remand is necessary to ensure compliance with the Board's prior remand instructions and to ensure that due process is met. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Identify any psychiatric conditions present during the appeal period. For each identified condition, answer the following: (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any acquired psychiatric condition is proximately due to or the result of the Veteran's residuals of prostate cancer? (c.) If the answer to (b) is negative, is it at least as likely as not that any acquired psychiatric condition is aggravated (i.e., permanently, or temporarily worsened) by residuals of prostate cancer? (d.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Identify all symptoms related to his CAD, to include any side effects from required medication. The examiner should address, as relevant, the Veteran's contention that he has various symptoms related to his service-connected disability and side effects of the required medication for such, to include nausea, dizziness and balance problems, drowsiness and fatigue, loss of muscle strength and memory and concentration problems. See February 2016, September 2016, and May 2018 Veteran Statements In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms. The examiner must specifically consider and discuss the lay statements of record and the opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.