Citation Nr: 21005686 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-08 894 DATE: February 2, 2021 ORDER An extraschedular disability rating in excess of 60 percent from December 01, 2018 for prostate cancer residuals is denied. FINDING OF FACT During the appeal period, the schedular criteria have been adequate to evaluate the Veteran’s service-connected prostate cancer residuals, the manifestations of which are adequately contemplated by the current 60 percent disability rating. CONCLUSION OF LAW From December 1, 2018, the criteria have not been met for a disability rating higher than 60 percent for service-connected prostate cancer residuals, including on an extraschedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1); 4.115a, 4.115b. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran timely initiated an appeal with a Notice of Disagreement. Following the February 2019 Statement of the Case, the Veteran timely perfected his appeal under the legacy review system with a VA Form (VAF) 9 received by VA on March 20, 2019. On March 21, 2019, VA also received a VAF 10182. Receiving both the VAF 9 and VAF 10182 resulted in the Veteran’s appeal being incorrectly docketed under both the legacy and modernized review system (also known as the Appeals Modernization Act (AMA)). Written at the top of the Veteran’s VAF 10182, there was a handwritten note reporting “Will also submit VAF 9 as he is under the legacy,” which appears to show the Veteran’s intent to remain under the legacy review system. Although the Veteran was notified in a May 2019 letter that his appeal was placed on the docket based on receipt of his VAF 10182, the Board notified the Veteran in May 2020 that the May 2019 letter was erroneously issued. In April 2019, the Veteran’s representative provided a statement regarding the Veteran’s claim. Later, in October 2019, the Board remanded the matter currently on appeal for additional development. The October 2019 decision was under the legacy review system. The Veteran did not contest that the decision was made under the legacy review system and did not opt-in to the AMA within 60 days of the October 2020 Supplemental Statement of the Case. Accordingly, this decision is also issued under the legacy review system. 1. An extraschedular disability rating in excess of 60 percent from December 01, 2018 for prostate cancer residuals is denied. Legal Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An extraschedular disability rating is warranted if a case presents such an exceptional or unusual disability picture with related factors of marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Veterans Court) explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Veterans Court stated that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Veterans Court indicated that there must be a comparison between the level of severity and symptoms of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptoms, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptoms and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.” Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Id. However, the Board is not required to defer to the Director’s decision and the Board is may decide entitlement to an extraschedular rating regardless of the Director’s decision. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages regarding 38 C.F.R. § 3.321(b) TDIU decisions to the Director’s decision regarding extraschedular adjudication); cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision regarding extraschedular TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence or a policy decision but simply an adjudication that is adopted by the RO and reviewed de novo by the Board). Factual Background In 2013, the Veteran was diagnosed with prostate cancer. Because of his Crohn’s disease, his urologist recommended taking a “watch and wait” approach rather than immediate surgery or other active treatment. In 2016, the Veteran’s prostate was re-biopsied and, because his PSA levels were rising, he had a robotic prostatectomy in November 2016. In July 2017, a VA examiner indicated that the Veteran’s prostate cancer was in remission and that the Veteran experienced residuals in the form of voiding dysfunction. This caused him to need to use absorbent materials that needed to be changed more than four times per day, as well as waking five or more times per night to urinate and having daytime voiding every one or two hours. A July 2017 VA rating decision proposed to discontinue the 100 percent rating for active prostate cancer treatment and to assign a 60 percent disability rating for prostate cancer residuals, based on the results of the July 2017 VA examination. The Veteran did not respond to this notification. A September 2018 rating decision notified him that the 100 percent disability rating for active prostate cancer treatment had been discontinued and that a 60 percent disability rating (the highest schedular evaluation allowed based on voiding dysfunction) had been assigned. In November 2018, the Veteran submitted a statement disagreeing with this action on the basis that his symptoms warranted a higher rating. In February 2019 and March 2019, the Veteran submitted additional statements. In the Veteran’s November 2018, and February 2019 statements primarily included reports that his prostate cancer residuals warrant a higher disability rating, including erectile dysfunction, incontinence (wearing absorbent material that needed to be changed more than 4 times per day, urinary frequency with daytime voiding intervals between 1 and 2 hours and awaking 5 or more times per night preventing him from returning to sleep resulting in fatigue), having to reduce liquids intake increasing dehydration, a penis deformity contributing to unintentional spraying of urine and embarrassment, symptoms of stress due to continued cancer screenings (including diarrhea until after results return), his need to restructure his life around these symptoms, and the November 2017 VA examiner did not inquire into these symptoms. [In July 2017, service connection was granted for erectile dysfunction and for a post-surgical scar, and the Veteran was also granted special monthly compensation based on the loss of use of a creative organ. Following the Veteran’s February 2019 statements, he was notified on February 27, 2019 that he would have to submit a claim on a standardized form. On March 19, 2019, the Veteran submitted a separate claim for deformity of the penis following the prostate cancer surgery. On April 04, 2019, the RO notified that the Veteran that they were already processing the deformity of the penis claim for him that was received in February 2019.] In October 2019, the Board remanded the matter of an extraschedular rating for prostate cancer residuals for extraschedular consideration, including getting up frequently at night to void causes exhaustion and emotional stress and that if he limits his water intake to try to avoid the problem, he experiences dehydration. [The Board noted that the Veteran already had submitted a separate claim for a deformity of the penis and found that issue was not included in this appeal.] In November 2019, the RO afforded the Veteran with the opportunity to identify and obtain medical records for private medical care providers. In December 2019, the Veteran identified a VA medical center, urology department, and cancer center and provided medical records from the urology department and cancer center. The RO obtained records from the VA medical center and the cancer center. In December 2019, when the RO contacted the urology department identified by the Veteran, they were notified that the urology department staff were not able to locate records from the Veteran. In January 2020, the Veteran resubmitted records for the urology department and the cancer center. In July 2020, the RO referred the issue of an increased disability rating for prostate cancer residuals to the Director of the Compensation Service for consideration on an extraschedular basis. In September 2020, the Director of Compensation Services provided an Advisory Opinion that acknowledged the Veteran’s reports of exhaustion, emotional distress, and dehydration and noted that lay persons are competent to speak to observable symptoms. The Director stated that the Veteran’s reports about these symptoms would be “taken at face value” although medical evidence would be required to assess their severity. The Director also noted that the Veteran’s medical records did not reveal any complaints of or treatment for these symptoms, noting in particular a June 2018 medical treatment note indicating that the Veteran was “well-nourished and well-developed and, in psychiatric terms, there were no complaints of problems with mood or affect.” The Director acknowledged the existence of the reported symptoms but concluded, based on a review of the Veteran’s medical records, that these symptoms did not cause “significant effects . . . such that the Veteran’s residuals of prostate cancer are not fully compensated by the current schedular evaluation[.]” September 2020 Director’s Advisory Opinion. Analysis In the present case, the Veteran was service connected for active prostate cancer treatment with a temporary total (100 percent) rating to December 1, 2018, at which point the temporary total rating ended and he was assigned a 60 percent evaluation. The Veteran asserts that his prostate cancer residuals warrant a higher disability rating and, accordingly, the period on appeal for an increased extraschedular disability rating is from December 1, 2018. In the September 2020 Advisory Opinion, the Director of Compensation Service concluded that the Veteran’s symptoms were contemplated by the schedular rating criteria and that an extraschedular evaluation was not warranted. However, the Board must review the evidence (as described above) on a de novo basis, without deference to the Director’s conclusions. In this case, the evidence indicates that the primary prostate cancer residuals at this point are the Veteran’s voiding dysfunction problems. These are already being compensated at the maximum schedular rating (60 percent) based on wearing of absorbent materials which must be changed more than 4 times per day. Although the Veteran also experiences urinary frequency (“voiding interval less than one hour, or; awakening to void five or more times per night”) that would qualify for a 40 percent disability, the statute requires that “[w]here diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes” (emphasis added). Here, 60 percent is more advantageous to the Veteran than the 40 percent rating, therefore the Veteran is awarded the higher 60 percent disability rating. [A rating higher than 60 percent may only be assigned when there is renal dysfunction, which does not apply here. See July 2017 VA examination.] The incontinence symptoms identified by the Veteran (wearing absorbent material that needed to be changed more than 4 times per day, urinary frequency with daytime voiding intervals between 1 and 2 hours and awaking 5 or more times per night which results in fatigue due to the disruptions in sleep), are symptoms that are expressly contemplated by the schedular rating criteria. Regarding the Veteran’s competent and credible reports about observable symptoms of fatigue or exhaustion, emotional distress, and dehydration, the Board does not question the fact that these symptoms exist. However, based on the fact that they have not risen to the level of severity that the Veteran has reported them as medical problems and sought treatment, such that they appear in the medical records (as also noted by the Director in her Advisory Opinion), the Board finds that these symptoms do not cause such an exceptional disability picture as to render the regular rating criteria inadequate. Specifically regarding the issue of dehydration, the record does show that the Veteran was advised to reduce fluid intake at night. The Veteran reported that “[a]ll of my doctors, including my urologist, gastroenterologist, and personal care physicians tell me I can reduce my fluid intake, but not to become dehydrated.” The Board is sympathetic to the fact that balancing these factors can be difficult but finds that following this medical advice does not create an exceptional disability picture or constitute an additional impairment to earning capacity that would justify awarding additional disability benefits on an extraschedular basis. Regarding erectile dysfunction and the Veteran’s reported penis deformity, the Board observes that the Veteran is service connected for erectile dysfunction and has a pending claim for the alleged penis deformity (which is therefore not before the Board as part of the current appeal). Accordingly, the Board finds that the Veteran’s symptoms do not create an exceptional disability picture that makes the regular schedule of disability ratings inadequate to assess the residuals of his prostate cancer. Furthermore, the Veteran has not provided evidence of “marked interference with employment” or “frequent periods of hospitalization.” The evidence does not indicate any hospitalizations for this condition after the disability rating was established at 60 percent. Regarding the Veteran’s employability since the active prostate cancer treatments ceased, the July 2017 examiner found that the Veteran’s symptoms do not impact his ability to work. Therefore, even if the Veteran’s symptoms were exceptional enough to warrant an exceptional disability picture outside the schedular rating criteria, the second Thun factor would not be met. See Thun, 22 Vet. App. at 115-16. Accordingly, based on the preponderance of the evidence, the appeal for an increased disability rating on an extraschedular basis must be denied. (Continued on the next page)   The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached. This decision does not leave the Veteran without recourse. He may request re-adjudication of this claim by submitting new and relevant evidence. He may also seek service connection for any other medical conditions (such as, for example, a psychiatric condition) if he believes that any such medical conditions are caused or aggravated by the service-connected prostate cancer residuals. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arritt, David 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.