Citation Nr: 21014994 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-11 517 DATE: March 16, 2021 ORDER Entitlement to an extraschedular rating for residuals of prostate cancer for the period on appeal prior to August 5, 2015 is denied. FINDING OF FACT The established schedular criteria are adequate to describe the severity and symptoms of the Veteran’s residuals of service-connected prostate cancer. CONCLUSION OF LAW The criteria for entitlement to an extraschedular rating for residuals of prostate cancer for the period on appeal prior to August 5, 2015 have not been met. 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 September 1968 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before the undersigned Veterans Law Judge in January 2019. This matter was previously remanded by the Board in May 2019. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in a November 2020 rating decision, the RO assigned a 100 percent evaluation for residuals of prostate cancer from August 5, 2015. Entitlement to an extraschedular rating for residuals of prostate cancer for the period on appeal prior to August 5, 2015 The Veteran contends that his prostate cancer residuals present an exceptional disability picture warranting extraschedular consideration. Specifically, the Veteran contends that he has symptoms of fatigue due to his prostate cancer, which warrants extraschedular consideration. In Thun v. Peake, 22 Vet. App. 111 (2008), the United States Court of Appeals for Veterans claims (CAVC) articulated a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant’s level of disability and symptomatology, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’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, Compensation Service to determine whether the Veteran’s disability picture requires the assignment of an extraschedular rating. See also 38 C.F.R. § 3.321 (b)(1). In a February 2013 statement, the Veteran stated that his low testosterone is causing chronic fatigue. He further stated that his work as an electronic technician often requires field work, which involves climbing towers, working on vehicles, and installing cable on towers and utility poles. The Veteran stated that his low testosterone is causing chronic fatigue which is affecting his ability to work. Additionally, the Veteran stated that his low testosterone cannot be treated by a testosterone supplement because of his history of prostate cancer. The Veteran had an examination in January 2016. The Veteran reported that he underwent a radical prostatectomy for prostate cancer. The Veteran stated that he has had fatigue since his prostatectomy. Furthermore, the Veteran stated that he had a medical evaluation and was told he had a low testosterone level and was advised not to take any supplement because it may aggravate his prostate cancer. The examiner noted that a review of the Veteran’s treatment records documents only a single testosterone level that was drawn in 2012 and that level was 165. The examiner stated that a diagnosis of hypogonadism cannot be based on one low testosterone level and therefore the Veteran does not have an endocrine diagnosis. Additionally, the examiner stated that there is no documentation that directly associates the Veteran's radical prostatectomy and his single low testosterone level. In a March 2016 statement, the Veteran stated that his service-connected prostate cancer residuals caused his chronic fatigue because of low testosterone. The Veteran further stated that he switched jobs due to his fatigue, and now has a substantially lower salary. In another March 2016 statement, the Veteran’s fiancé stated that the Veteran had no desire to due anything due to his fatigue and that he had to quit a good paying job because he did not have the energy to keep up with his demanding job duties. The Veteran had an examination for his prostate cancer in July 2018. The examiner noted that the Veteran’s prostate cancer impacted his ability to work. The examiner stated that the Veteran suffers from fatigue since previous treatment in 2010 for prostate cancer and is unable to perform physically demanding work. The Veteran reported that he currently works as a van driver. The Veteran further reported that he was unable to maintain his previous livelihood in electronics due to inability to remain safe at high altitudes due to fatigue. The Veteran had another examination for his prostate cancer in August 2018. The examiner noted that the Veteran’s prostate cancer impacted his ability to work. Specifically, the examiner stated that the Veteran’s low testosterone leads to fatigue. At the January 2019 Board hearing, the Veteran testified that the biggest symptom was chronic fatigue caused by low testosterone. He further testified that he started having a real problem with fatigue partially because of the nature of his work at an electronic company. The Veteran stated that he tried to keep doing the job, but it got to the point where he was afraid that he was going to fall. Additionally, the Veteran testified that several of his treating physicians told him that his fatigue is caused by low testosterone, which is caused by his prostate cancer. In an October 2020 medical opinion, the examiner opined that it was less likely than not that the Veteran’s fatigue was proximately due to of the result of the Veteran’s service-connected prostate cancer residuals. The examiner noted that the Veteran had a radical prostatectomy for adenocarcinoma of the prostate in March 2010. The examiner indicated that there was no mention in any of the records that the Veteran had any adjuvant treatment such as radiation or androgen deprivation at that time, and noted that his post-surgery PSAs were undetectable in July 2010, November 2010, February 2011, and June 2011. The examiner stated that there is no indication that the Veteran received any treatment for anything other than for the post-op erectile dysfunction. The examiner stated that the medical evidence of record does not mention any adjuvant treatment until the Veteran’s prostate cancer was determined to be active again. The examiner noted that the Veteran first mentioned fatigue to his primary care physician in August 2012, more than two years post prostatectomy. On that date, it was noted that he was working 45 to 50 hours per week, at age 63. A serum testosterone was low on that date. It was 165, and normal is referenced as 241-827. Due to his history of prostate cancer, the Veteran was not offered testosterone cream until his PSA’s remained stable three years post-operatively. In July 2018, the Veteran’s testosterone was again low at 195. The October 2020 examiner stated that “while any major surgery would cause short term fatigue during the recovery period, such fatigue would be expected to have resolved by three months post-operatively”. The examiner indicated that if the Veteran was able to work 45-50-hour workweeks, he was fully recovered from his prostate surgery by August 2012. The examiner concluded that the Veteran’s fatigue was likely caused by his low testosterone level, stating that his thyroid labs were all normal, he was not anemic, and his electrolytes were all normal. However, the examiner stated that there is also no plausible mechanism whereby a prostatectomy would cause low testosterone. Additionally, the examiner stated that the Veteran’s testis were not removed, and he did not receive androgen deprivation. The Veteran’s claim was referred to the Director of Compensation Service who denied an extraschedular rating in December 2020. The Director determined that there was no evidence of an association between the prostate cancer treated by prostatectomy in March 2010 and the later reports of fatigue and low testosterone levels. Therefore, the Director determined than an increased rating is not warranted on an extraschedular basis for the Veteran’s prostate cancer residuals. The Board agrees with the Director and finds that the weight of the probative evidence is against finding an association between the prostate cancer treated by prostatectomy in March 2010 and the later reports of fatigue and low testosterone levels. The Board finds the October 2020 medical opinion to carry significant probative weight because the examiner provided a detailed opinion based on the relevant evidence of record. In contrast, the Board does not find the August 2018 examiner’s opinion to carry significant probative weight because the examiner’s rationale was conclusory. Accordingly, since the symptomology of fatigue, which was identified as the factor which might afford an extraschedular rating, is not service related, an extraschedular rating is not warranted. Furthermore, the Board observes that the Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. However, the Veteran is not competent to render an opinion as to the cause or etiology of his chronic fatigue and low testosterone because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Accordingly, based on the preponderance of the evidence, the appeal for an increased disability rating on an extraschedular basis for the period on appeal prior to August 5, 2015 must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, Associate 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.