Citation Nr: 21009617 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-02 013 DATE: February 22, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for ischemic heart disease prior to December 18, 2018, is denied. The propriety of reducing the disability rating for prostate cancer from a total (100 percent) disability rating to a disability rating of 20 percent, to include whether the Veteran is entitled to a disability rating in excess of 20 percent, from February 1, 2013, is denied. REMANDED Entitlement to service connection for a skin disorder, to include chloracne and eczema, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 18, 2018, the Veteran’s ischemic heart disease was productive of dyspnea, fatigue, and angina at a metabolic equivalents (METs) workload of no worse than three to five, and left ventricular ejection fraction (LVEF) was measured at no worse than 40 percent. 2. The Veteran received notice of the proposed reduction of the disability rating for prostate cancer from 100 percent by way of the rating decision dated in March 2012; the March 2012 letter also notified the Veteran of his right to submit additional evidence and request a predetermination hearing. 3. From February 1, 2013, the Veteran’s prostate cancer is in remission and manifested by voiding dysfunction involving urine leakage requiring the use of absorbent materials which must be changed less than two times per day, daytime voiding interval between one and two hours, and awakening to void three to four time per night. CONCLUSIONS OF LAW 1. Prior to December 18, 2018, the criteria for an initial rating of 60 percent for ischemic heart disease have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7011 (2019). 2. From February 1, 2013, the rating reduction from 100 percent to 20 percent for the Veteran’s service-connected prostate cancer was proper. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.115a, 4.115b, Diagnostic Code 7528 (2019). 3. From February 1, 2013, the criteria for an increased rating higher than 20 percent for prostate cancer are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7828 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to December 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania, in November 2012. In June 2018, the Board remanded the Veteran’s claims for additional development. The Board notes that the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board in August 2016. In December 2020, the Veteran was offered another opportunity for a hearing; however, the Veteran did not respond within 30 days. Therefore, the Board will continue review of the appeal. A transcript of that hearing has been associated with the claims file. Increased Rating – Ischemic Heart Disease The Board notes that in a May 2020 rating decision, the Veteran was granted a 100 percent rating for his service-connected ischemic heart disease effective December 18, 2018. As such, the Board will address the relevant time period prior to that date. The Veteran claims that his heart symptoms are more consistent with a 100 percent rating. During a May 2012 VA examination, the Veteran was diagnosed with coronary artery disease and prior coronary artery bypass graft. He was noted to take several medications for his heart disability including Plavix, aspirin, Metoprolol, and sublingual nitro[glycerin] as needed. The examiner reported that the Veteran did not have congestive heart failure. The Veteran reported dyspnea and fatigue, and a workload of five to seven METs was estimated following interview-based stress testing. LVEF was noted to be 40 percent based on a May 2012 echocardiogram. During a July 2013 VA examination, the Veteran was once again diagnosed with coronary artery disease and prior coronary artery bypass graft and was noted to take various medication for his heart disability including aspirin, Gemfibrozil, Lisinopril, Metoprolol, Rosuvastatin, folic acid, and Clopidogrel. The examiner reported that the Veteran did not have congestive heart failure. The Veteran underwent stress testing with reported dyspnea and angina, and a workload of three to five METs was achieved. LVEF was noted to be 41 percent based on a July 2013 echocardiogram. VA outpatient treatment reports indicate that the Veteran was followed for his heart disability and treated with the medications noted at the VA examinations of record. There are no other medical records dated during the relevant appeal period at issue indicating that the Veteran’s heart disability was worse than reported at the examinations discussed above. For the relevant appeal period prior to December 18, 2018, the Board finds that the Veteran is not entitled to an initial rating in excess of 60 percent for his service-connected ischemic heart disease. In this regard, there is no indication from the record that the Veteran had chronic congestive heart failure, or; a workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent nor was the Veteran hospitalized for a sustained ventricular arrhythmia, ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place. In fact, the Veteran’s METs workload was noted to be no worse than in the three to five range and there was no indication of LVEF worse than 40 percent. Therefore, an initial rating in excess of 60 percent for the Veteran’s heart disability is not warranted prior to December 18, 2018. 38 C.F.R. § 4.104, Diagnostic Code 7011 (2019). Accordingly, the Veteran’s claim for increased rating for ischemic heart disease prior to December 18, 2018 must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Propriety of Reduction - Prostate Cancer In this case, the reduction of the Veteran’s prostate cancer resulted in a reduction of compensation payments. Specifically, his combined disability rating went from 100 percent, effective September 26, 2006, to 20 percent, effective February 1, 2013. Therefore, the notice provisions of 38 C.F.R. § 3.105(e) apply. The Board notes that in a November 2012 rating decision, the RO effectuated a reduction of the rating for prostate cancer and assigned a 10 percent rating effective February 1, 2013. In a December 2013 rating decision, the RO thereafter assigned a 20 percent rating effective February 1, 2013. Historically, a March 2012 rating decision noted that the Veteran’s prostate cancer was proposed to be reduced from 100 percent to 10 percent, based on a March 2012 VA examination report, which showed that his prostate cancer was presently in remission, and he had voiding dysfunction resulting in urine leakage without the use of absorbent material. He had increased urinary frequency which results in daytime voiding intervals between two to three hours and nighttime awakening to void two times. The voiding dysfunction also caused symptoms of hesitancy, slow or weak stream, and decreased force of stream. The Veteran was notified that he had 60 days to submit additional evidence showing that his compensation should be continued at the 100 percent rating in a March 2012 letter. Based on review of the file, the notice provisions of 38 C.F.R. § 3.105(e) have been satisfied. In this case, the Veteran was notified of the proposed reduction and that he had 60 days to respond and of the final reduction. The effective date was one day after the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expired. The Veteran did not request a predetermination hearing. The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements above. Accordingly, the Board finds that the proper procedure was followed for making a rating reduction in this matter. The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, a Note following that code explains 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 any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. Because Diagnostic Code 7528, the diagnostic code under which the Veteran’s prostate cancer residuals are rated, contains a temporal element (its criteria mandate the assignment of a 100 percent initial evaluation for a certain period of time followed by a VA examination to determine the degree to which any residuals are disabling), the November 2012 rating decision assigning a 10 percent rating does not constitute a rating reduction. See Tatum v. Shinseki (Tatum I), 24 Vet. App. 139, 143 (2010); Rossiello v. Principi, 3 Vet. App. 430 (1992); 38 C.F.R. § 4.115b, Diagnostic Code 7528. 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. The Board need only 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; therefore, the alleged reduction was proper by operation of law under DC 7528. As noted, a March 2012 VA examination report noted that the Veteran’s prostate cancer was in remission. He had voiding dysfunction resulting in urine leakage without the use of absorbent material. He had increased urinary frequency which results in daytime voiding intervals between two and three hours and nighttime awakening to void two times. The voiding dysfunction also caused symptoms of hesitancy, slow or weak stream, and decreased force of stream He underwent another VA examination in July 2013, which noted that the Veteran’s prostate cancer was in remission. He had voiding dysfunction resulting in urine leakage. He indicated that while he has not historically required the use of pads, he changed his underwear one to two times per day and noted that he should start using pads. He had increased urinary frequency which results in daytime voiding intervals between one and two hours and nighttime awakening to void two times. The voiding dysfunction also caused symptoms of slow or weak stream and decreased force of stream. Based on this examination, the RO increased the Veteran’s prostate cancer rating to 20 percent, effective February 1, 2013. Under the provisions of 38 C.F.R. § 4.115a, daytime voiding interval between one and two hours warrants a 20 percent rating. Finally, during a VA examination in October 2019, the Veteran’s prostate cancer was in remission. He had voiding dysfunction resulting in urine leakage which required the use of absorbent materials that must be changed less than twice per day. He had increased urinary frequency which results in daytime voiding intervals between two and three hours and nighttime awakening to void three to four times. Of note, the findings of this examination are also consistent with a 20 percent rating based on the voiding dysfunction resulting in urine leakage which required the use of absorbent materials that must be changed less than twice per day and his increased urinary frequency which results in nighttime awakening to void three to four times. 38 C.F.R. § 4.115a. Based on the VA examinations in March 2012, July 2013, and October 2019 demonstrating that the Veteran’s prostate cancer was in remission and presently manifested by voiding dysfunction resulting in urine leakage which required the use of absorbent materials that must be changed less than twice per day and his increased urinary frequency which results in nighttime awakening to void three to four times, a reduction in rating from 100 percent was proper. In conclusion, the evidence of record does not demonstrate that the Veteran continued to receive any surgical, x-ray, or antineoplastic chemotherapy following February 1, 2013, nor does the evidence demonstrate that for the period following February 1, 2013, he continued to have any active malignancy of his genitourinary system, or any local recurrence or metastasis of his prostate cancer. Accordingly, given the lack of recurrence or metastasis of the prostate cancer on or after February 1, 2013, the reduction of the Veteran’s 100 percent rating for prostate cancer was proper. See 38 C.F.R. § 4.115b, DC 7528; Rossiello v. Principi, 3 Vet. App. 430 (1992). Increased Rating – Prostate Cancer The Veteran contends that his prostate cancer symptoms are more severe than warranted for a 20 percent rating. The Board concludes that the Veteran’s prostate cancer disability does not warrant a rating higher than 20 percent since February 1, 2013. As noted above, the Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. As noted, the examinations in March 2012, July 2013, and October 2019 are consistent with no more than the presently assigned 20 percent rating. The Veteran’s prostate cancer has remained in remission during the entire appeal period at issue. The March 2012 VA examination report reveals a voiding dysfunction resulting in urine leakage without the use of absorbent material, increased urinary frequency which results in daytime voiding intervals between two and three hours, and nighttime awakening to void two times. The July 2013 VA examination report reveals voiding dysfunction resulting in urine leakage, increased urinary frequency which results in daytime voiding intervals between one and two hours, and nighttime awakening to void two times. Finally, the October 2019 VA examination report reveals voiding dysfunction resulting in urine leakage which requires the use of absorbent materials that must be changed less than twice per day, increased urinary frequency which results in daytime voiding intervals between two and three hours, and nighttime awakening to void three to four times. Under the provisions of 38 C.F.R. § 4.115a, voiding dysfunction requiring the use of absorbent materials which must be changed less than two times per day; or, daytime voiding interval between one to two hours or awakening to void between three to four times per night warrants a 20 percent rating. Further, there is no evidence of urine leakage or obstructive voiding that would warrant a higher rating under the specified rating criteria for such symptomatology. See 38 C.F.R. § 4.115a. Accordingly, the Veteran’s claim for increased rating for prostate cancer must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2018); Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND With regard to the issue of entitlement to service connection for a skin disorder, the Veteran’s claim was previously remanded to determine the nature and etiology of the disorder. However, the remand directives did not specifically request that the examiner opine whether any diagnosed skin disorder, to include a rash and eczema, are at least as likely as not (50% degree of probability or higher) related to an in-service injury, event, or disease. The Veteran was afforded a VA examination in October 2019 and he was diagnosed with eczema. Chloracne was not found on examination. An addendum opinion was obtained from another VA clinician in May 2020. The clinician noted that the examination request was unclear and that clear examination requests are preferred. The examiner further noted that the remand directive did not include a specific request for a medical opinion. The examiner included a discussion of eczema. However, an etiological opinion was not included. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examination/opinion request did not include a request for an etiological opinion using the appropriate standard. Thus, the Board finds that an addendum medical opinion is warranted to address the Veteran’s claim of entitlement to service connection for a skin disorder. Lastly, adjudication of the TDIU claim is deferred as it is inextricably intertwined with the claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s claimed skin disorder, diagnosed as eczema. The examiner must opine whether such diagnosis is at least as likely as not (50% degree of probability or higher) related to an in-service injury, event, or disease. The examiner should provide a detailed rationale for the opinion, including a discussion of the pertinent evidence of record both in service and after service and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. 2. Confirm that the VA examination reports comport with this remand, and undertake any other development determined to be warranted. 3. Then, readjudicate the remaining claims. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.