Citation Nr: 21015457 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-00 277 DATE: March 17, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected voiding dysfunction status post radical prostatectomy, prostate cancer residuals (prostate cancer residuals), is granted, subject to the controlling regulations governing the payment of monetary awards. Entitlement to an increased rating for prostate cancer residuals, currently rated 60 percent disabling, is denied. FINDINGS OF FACT 1. The Veteran has been in receipt of service connection for prostate cancer residuals rated 60 percent disabling throughout the appeal period, and this disability prevents him from securing and following a substantially gainful occupation in light of his limited education and occupational history. 2. There has been no local reoccurrence or metastasis of the Veteran’s prostate cancer and his predominant area of dysfunction is voiding dysfunction. CONCLUSIONS OF LAW 1. The criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for an increased rating greater than 60 percent for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating greater than 60 percent for residuals of prostate cancer. In October 2018 the Veteran filed a notice of disagreement (NOD) and in December 2018 the RO issued a statement of the case (SOC). In December 2018 the Veteran filed a substantive appeal (via VA Form 9). In March 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is not currently associated with the record but is not necessary for a decision on the claim. The benefit sought is being granted in full in regard to the TDIU and the Veteran is receiving the maximum schedular rating for his prostate cancer residuals based on the predominant area of dysfunction as required under the applicable regulation as discussed below. 1. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the present case, the Veteran is in receipt of service connection for residuals of prostate cancer rated 60 percent disabling, tinnitus rated 10 percent disabling, erectile dysfunction rated noncompensable, and scars rated noncompensable. Thus, the Veteran has met the percentage requirements for a TDIU. The remaining question is whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Regarding the Veteran’s employability, in the October 2017 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) the Veteran reported that he last worked in July 2007 as a machine operator and that he did not leave his last job because of his disability. A November 2017 VA examiner opined that the Veteran’s prostatectomy with erectile dysfunction does not affect his employability. A February 2018 VA examiner opined that the Veteran’s prostate cancer has been in remission for several years and does not cause the Veteran functional loss. The February 2018 VA examiner explained that the Veteran’s contention is an emotional dysfunction due to him having prostate cancer but that does not affect his employability. Significantly, however, the November 2017 VA examiner noted that the Veteran’s voiding dysfunction impacted his ability to work as he would have difficulty in any work environment that would not have easy access to toileting facilities. With regard to the non-economic factors, the Veteran’s educational history is not extensive, having trained as an auto mechanic and taken some child-care courses at Western Michigan University. The Veteran stated that his service-connected disabilities prevented him from completing college and his loans went into default. On the Veteran’s DD-214, his Military Occupational Specialty (MOS) is listed as acetylene plant operator. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Id. at 1354. Given the Veteran’s limited educational and occupation history, which would not allow him to work at a job without easy access to facilities, a situation that the November 2017 VA examiner indicated would create a difficult work environment, and his statements reflecting the severe impact these symptoms have on his employability, the Board finds that his service-connected prostate cancer residuals render the Veteran unable to secure or follow substantially gainful employment. Therefore, entitlement to a TDIU is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 2. Prostate cancer residuals The Veteran’s prostate cancer residuals are currently rated 60 percent disabling under DC 7528 which contemplates malignant neoplasms of the genitourinary system (i.e. prostate cancer). Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, Note. Here, the Veteran’s prostate cancer residuals have been manifested by symptoms more nearly approximating voiding dysfunction. The evidence of record does not show that the Veteran has experienced renal dysfunction. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. For evaluations based on urine leakage, due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a, DC 7528. For a rating based on urinary frequency, a 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. Id. A November 2017 VA examiner noted that the Veteran was diagnosed with adenocarcinoma of the prostate which was surgically treated with a prostatectomy in August 2013. The VA examiner noted the Veteran experienced voiding dysfunction which causes urine leakage and the use of an artificial sphincter that he has been taught to control. The voiding dysfunction caused increased urinary frequency with daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. The VA examiner noted that the Veteran did not experience renal dysfunction. The evidence of record reflects that for the entire period on appeal, the Veteran’s prostate cancer residuals more nearly approximate the criteria for a 60 percent rating for a voiding dysfunction. The 60 percent rating for a voiding dysfunction is the maximum schedular evaluation assignable. The above evidence reflects that the Veteran has not had any active prostate cancer during the claim period, and that he has not received any cancer treatment since his August 2013 prostatectomy. Thus, a 100 percent rating under DC 7528 is not warranted at any time during the claim period, and an increased rating greater than 60 percent for the Veteran’s prostate cancer residuals is not warranted. The evidence of record reflects that the Veteran has voiding and urinary problems, but there is no evidence of renal dysfunction. The Board has considered whether the Veteran’s disability could be rated by analogy to renal dysfunction, in particular the 80 percent rating warranted by his generalized poor health. Given, however, the specific command of 38 C.F.R. § 4.115a that “only the predominant area of dysfunction shall be considered for rating purposes,” the Board cannot rate the Veteran’s prostate cancer by analogy as renal dysfunction. Cf. Hudgens v. Gibson, 26 Vet. App. 558, 560 (2014) (rating of partial knee replacement as total knee replacement is allowable if certain criteria are met in the absence of a specific prohibition against such a rating). The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.