Citation Nr: 21030551 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-33 281 DATE: May 19, 2021 ORDER Entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood as secondary to service-connected prostate cancer residuals is granted. Entitlement to an evaluation greater than 60 percent for prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence, on a schedular basis, is denied. Entitlement to an evaluation greater than 60 percent for prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence, on an extraschedular basis, is denied. REMANDED Entitlement to a total disability evaluation based upon individual unemployability due service-connected disabilities (TDIU) prior to June 16, 2020, is remanded. FINDINGS OF FACT 1. Currently diagnosed adjustment disorder with mixed anxiety and depressed mood is etiologically related to service-connected prostate cancer residuals. 2. The Veteran's residuals of prostate adenocarcinoma result in voiding dysfunction but not in renal dysfunction and there has been no metastasis or local reoccurrence. 3. The prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence does not present such an exceptional or unusual disability picture that the available schedular ratings are inadequate. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an adjustment disorder with mixed anxiety and depressed mood as secondary to service-connected prostate cancer residuals have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for a rating in excess of 60 percent for residuals of prostate adenocarcinoma on a schedular basis have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115(a), 4.115(b) Diagnostic Code 7528 (2020). 3. The criteria for an extraschedular rating for prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.115, Diagnostic Code (DC) 7528 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1961 to April 1965. These matters are on appeal from a March 2014 rating decision. This matter was previously before the Board of Veterans' Appeals (Board) in April 2019, at which time it was remanded for further development. The Board noted in the remand that the Veteran had written in his June 2018 VA Form 9 that his examination was inadequate because he was not actually examined. He explained that his symptoms had worsened and caused staining, which made him embarrassed and which prevented substantially gainful employment. The Board further observed that in April 2019, the Veteran's representative wrote that the Veteran's symptoms were abnormal, disruptive, and had an embarrassing impact on his daily life. He requested a new examination to ascertain the current severity of the Veteran's disability. The Board found at that time that a remand was required to afford the Veteran a contemporaneous examination and to refer the claim for extraschedular consideration of the symptoms of embarrassment and social isolation, which were not contemplated by the rating criteria for prostate cancer. As a result of the remand, the Veteran was afforded additional VA examinations, to include a VA psychiatric examination, wherein the examiner indicated that the Veteran's current psychiatric disorder was etiologically related to his service-connected prostate residuals. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (Court) held that "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. In light of the above findings and Court holding, the Board has taken jurisdiction of the issue of entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood as secondary to service-connected prostate cancer residuals and will address this issue below. Adjustment Disorder with Mixed Anxiety and Depressed Mood as Secondary to Service-Connected Prostate Cancer Residuals Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran maintains that symptoms of embarrassment and social isolation result from the service-connected urinary incontinence/prostate cancer residuals. At the time of a November 2019 VA psychiatric examination, the Veteran was diagnosed as having an adjustment disorder with mixed anxiety and depressed mood. The examiner indicated that per the current exam, the Veteran met full DSM 5 criteria for chronic adjustment disorder with mixed anxiety and depressed mood. The examiner noted that the Veteran reported a loss of all interest in previously enjoyed activities, social isolation, and severe embarrassment due to his incontinence after prostate surgery. He stated, "I can't go anywhere without needing to go to the bathroom or clean myself. I used to love horse riding, and now I would have to change my pad every 5 minutes if I wanted to do it. I don't even ride at home anymore. It completely destroyed my life. Sometimes I wish I hadn't had the surgery. If I knew what I would go through after it, I wouldn't have done it." The examiner indicated that embarrassment and social isolation were not individual DSM 5 diagnoses, but instead symptoms associated with numerous disorders. He opined that the Veteran's embarrassment and social isolation were subsumed by his chronic adjustment disorder with mixed anxiety and mood disorder proximal to his prostate cancer, prostate surgery and resulting incontinence. In the present case, the record does not demonstrate nor has the Veteran contended that his psychiatric disorder had its onset in service. As such, service connection on a direct basis is not warranted. As to the issue of service connection on a secondary basis, the Board finds that the November 2019 VA examiner's opinion of great probative value. Given the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for an adjustment disorder with mixed anxiety and depressed mood as secondary to service-connected prostate cancer residuals is warranted. Prostate Cancer, Status Post Pelvic Lymphoidectomy and Radical Retropubic Prostatectomy with Urinary Incontinence-Schedular Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's residuals of prostate adenocarcinoma are rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. Under the criteria for Diagnostic Code 7528, a 100 percent rating is warranted for malignant neoplasms of the genitourinary system. However, the Note to this Diagnostic Code indicates 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 38 C.F.R. § 3.105(e) and, if there has been no local recurrence or metastasis, shall be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13 (Vet. App. Jan. 6, 2021) (holding that Diagnostic Code 7528 directs that evaluation of residuals of a malignant neoplasm of the genitourinary system be based solely on voiding or renal dysfunction, whichever is predominant and that other non-voiding and non-renal dysfunctions do not factor into a schedular evaluation under that Diagnostic Code). The Veteran currently has a 60 percent disability rating for the appeal period based on voiding dysfunction, the highest rating possible under 38 C.F.R. § 4.115a. A rating in excess of 60 percent for his residuals of prostate adenocarcinoma requires renal dysfunction, or reoccurrence or metastasis. 38 C.F.R. § 4.115(b), Diagnostic Code 7528. Under the criteria for rating renal dysfunction, a rating of 100 percent is warranted when a veteran requires regular dialysis or is precluded from more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen (BUN) more than 80mg%; or creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted in cases of persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. At the time of a December 2013 VA prostate cancer examination, the Veteran was noted to require the changing of absorbent material more than four times per day. There was no history of recurrent symptomatic urinary tract or kidney infection. At the time of a November 2019 VA examination, the Veteran was again noted to have to change absorbent materials more than four times per day with daytime voiding between one and two hours and nighttime awakening to void five or more times. There was no history of recurrent symptomatic urinary tract or kidney infection. The prostate cancer was noted to be in remission. Turning to the evidence, there have been no findings of acute or chronic renal failure and the Veteran is not on dialysis. The evidence does not reveal renal dysfunction. The Veteran has reported experiencing urinary problems and erectile problems, which are confirmed by the evidence of record. He did not mention having any renal complications. A preponderance of the evidence is against a finding that the Veteran has experienced persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg. VA treatment records also do not reveal that the Veteran has experienced generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due to the prostate cancer. As such, the evidence does not more nearly approximate the criteria for a higher 80 percent rating based on renal dysfunction criteria. Additionally, there is no evidence that the Veteran has experienced a local reoccurrence or metastasis of prostate cancer. The Veteran's prostate cancer has been noted to be in remission. The evidence does not otherwise show a local recurrence or metastasis of the prostate cancer. The Veteran has already been granted the maximum schedular rating for voiding dysfunction. There is no higher schedular rating that can be assigned for voiding dysfunction by regulation. See 38 C.F.R. § 4.115a, Voiding Dysfunction. In a case such as this one where the law and not the evidence is dispositive, entitlement to a higher schedular rating is denied because there is a lack of entitlement as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Full consideration has been given to the lay evidence, including the Veteran's assertions that he has voiding dysfunction and erectile dysfunction. But he is already service connected for both conditions as residuals of prostate adenocarcinoma and being compensated for the consequent impairment owing to each by way of the 60 percent rating for his urinary incontinence and separate 20 percent rating for his erectile dysfunction and shortening of the penis and the additional provision of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) because of loss of use of a creative organ. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a disability rating in excess of 60 percent for residuals of prostate adenocarcinoma during the period on appeal is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Generally, disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in April 2019. The AOJ referred the claim for an extraschedular rating to the Director. In a July 2020 decision, the Director denied an extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). In the July 2020 advisory opinion, the Executive Director of Compensation Service noted that the Veteran was service-connected for residuals of prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence, currently evaluated as 60 percent disabling. The Director observed that the Veteran had submitted a claim for entitlement to individual unemployability due to his service-connected prostate cancer residuals as well as his coronary artery disease. The VA examiner, in a December 2013 examination report, did not find the prostate cancer residuals affected his participation in gainful employment. The claim for increase and entitlement to individual unemployability was denied by rating decision dated March 28, 2014. That decision was appealed. The Director noted that the medical evidence reports indicated that the Veteran's incontinence had become more bothersome in the last 6 months to where he might need active treatment for the problem. A statement from Dr. G. noted subsequent urinary incontinence with failed medical management and incontinent symptoms having progressed. The Veteran's representative submitted an informal hearing presentation in April 2019, in which it was argued that the severity of the Veteran's condition had such an abnormal, disruptive, and embarrassing impact on his daily life, that it required a greater evaluation. A November 2019 VA contract examination noted that the Veteran's symptoms that were not contemplated by rating criteria included embarrassment and social isolation. A November 2019 VA contract examination report indicated that the symptoms of embarrassment and social isolation were associated with his chronic adjustment disorder with mixed anxiety and mood disorder proximal to his prostate cancer condition. The Director observed that when the criteria contained in the Rating Schedule were found to be inadequate in reflecting the degree of disability, an extra-schedular evaluation was authorized under 38 C.F.R. § 3.321. As such, a case had to present such an exceptional or unusual disability picture as to render impractical the application of the standards contained in the Schedule before consideration under 38 C.F.R. § 3.321. Factors in making this determination included marked interference with employment or frequent periods of hospitalization. (38 C.F.R. § 3.321). The Director noted that 38 C.F.R. § 4.1 indicated "the percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 3.321 also noted "ratings shall be based, as far as practicable, upon the average impairments of earning capacity." It was further noted, "to accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegate that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization." That is, both 38 C.F.R. § 3.321 and 4.1 clearly note that evaluations are to be based on impairment in/of earning capacity. The Director found that based on the evidence of record there was no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. There had been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors causing any disruption to employment such as hospitalizations, etc. Further, any such findings would be speculative and hypothetical, as Veteran had reportedly not worked since 2010. The Director stated that it was well established that evidence that is speculative, general, or inconclusive in nature did not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bloom v. West, 12 Vet. App. 185, 187 (1999); et al. Thus, entitlement to an extra-schedular rating was denied. After a thorough consideration of the evidence of record, both lay and medical, the Board finds that, for the entire rating period on appeal the weight of the evidence is against an extraschedular rating for the service-connected prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence. The primary disability resulting from the Veteran's prostate cancer residuals is urinary incontinence which is encompassed in the schedular rating criteria. Erectile dysfunction and shortening of the penis have also been assigned separate schedular disability evaluations. The Board does note that both the Veteran and his representative have indicated that the Veteran had symptoms of embarrassment and social isolation as a result of his service-connected prostate residuals. The November 2019 VA examiner specifically indicated that the Veteran's symptoms that were not contemplated by rating criteria included embarrassment and social isolation. However, the November 2019 VA contract examination also stated that the symptoms of embarrassment and social isolation were associated with his chronic adjustment disorder with mixed anxiety and mood disorder proximal to his prostate cancer condition. As noted in the above decision, the Board has granted service connection for the adjustment disorder with mixed anxiety and mood disorder in this decision. Therefore, the symptoms which are not covered under the prostate residuals criteria in 7528 are now symptoms covered under the newly granted claim of service connection for an adjustment disorder with mixed anxiety and mood disorder. As noted in Morgan v. Wilkie, supra, VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code. Here the Board has done so. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence are specifically contemplated by the schedular rating criteria. In this case, the symptoms and impairments reported by the Veteran are specifically contemplated by the schedular rating criteria discussed above, which contemplate the effect on occupation, specifically urinary incontinence and psychiatric symptoms associated with prostate cancer, status post pelvic lymphoidectomy and radical retropubic prostatectomy with urinary incontinence; the Board finds that the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). REASONS FOR REMAND As to the issue of entitlement to a TDIU, the Board notes that it is inextricably intertwined with the newly granted claim of service connection for an adjustment disorder. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, the Court has held that, in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the service-connected disabilities have on a Veteran's ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). As such, a medical opinion is needed. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to obtain evidence as to the functional effects of service-connected disabilities, to include the newly service-connected adjustment disorder, on his ability to obtain or maintain substantially gainful employment in light of his work history and level of education prior to June 16, 2020. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.