Citation Nr: A21011271 Decision Date: 06/28/21 Archive Date: 06/28/21 DOCKET NO. 201116-120262 DATE: June 28, 2021 ORDER A permanent and total rating for prostate cancer is denied. FINDING OF FACT The rating criteria for the Veteran's service-connected prostate cancer (currently at 100 percent) contemplate remission and therefore precludes the assignment of a permanent and total disability rating. CONCLUSION OF LAW The criteria for a permanent and total rating for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1993 to February 1997, and from September 2003 to March 2004. This matter is before the Board of Veterans' Appeals (Board) from a November 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office which established service connection for prostate cancer effective May 1, 2020, and evaluated as 100 percent disabling. The Veteran timely appealed to the Board to the extent the rating decision did not find he was entitled to a permanent and total rating, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). See November 2020 Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(1). Entitlement to a permanent and total rating for prostate cancer The Veteran has been awarded a 100 percent rating for his prostate cancer via the November 2020 rating decision that is the focus of this appeal, effective May 1, 2020. The Veteran contends his disability will not improve, and he should be granted a permanent total rating. Under 38 C.F.R. § 3.340(b), a permanent total disability is one where the impairment is reasonably certain to continue throughout the life of the disabled person. The term contemplates diseases and injuries of long standing which are totally incapacitating and where the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340(b). The Board notes that the November 2020 rating decision also granted service connection for erectile dysfunction, but the Veteran has not included that issue as part of this appeal. The Veteran has emphasized a June 2020 statement from his private cancer treatment provider in support of his appeal. In pertinent part, that statement explicitly stated the Veteran's prostate cancer was a "disease for which we do not have curative therapies and his life expectancy is in the order of 3 to 5 years." The Veteran has also criticized certain findings of the November 2020 rating decision. For example, that the rating decision found there was no local recurrence or metastasis. He maintains his private treatment records do show metastasis. He also disputed the rating decision's finding the likelihood of improvement, particularly in light of the aforementioned June 2020 private medical statement. The Board is sympathetic to the Veteran in this case and does not wish to diminish the seriousness of his prostate cancer. Nevertheless, as detailed below, it must find that the AOJ's action in not awarding a permanent and total rating is consistent with the pertinent rating criteria. The Veteran's prostate cancer is rated under Diagnostic Code 7528, which authorizes a total rating for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. The November 2020 rating decision explicitly stated that the rating was based upon active malignancy. Diagnostic Code 7528 states 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. However, once treatment specific to the cancer ceases for a set amount of time), a 100 percent rating is no longer for application under Diagnostic Code 7528, and instead the disability is to be rated based on the residuals of the cancer. In short, the wording of Diagnostic Code 7528 contemplates the ending of the treatment for the prostate cancer, with a provision for rating based on residuals. Further, Diagnostic Code 7528 adds that any change in evaluation based on that or any subsequent examination shall be subject to the provisions of 38 U.S.C. § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. The November 2020 rating decision did state that "[s]ince there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination." This statement is consistent with the aforementioned regulatory provisions. The Board also notes that the November 2020 rating decision did not state there had been no local recurrence or metastasis in the case of the Veteran's prostate cancer. Rather, it noted that when such was the case regulations mandated the disability be rated based upon residuals of voiding or renal dysfunction. The Board acknowledges the June 2020 private medical statement the Veteran has emphasized in support of this appeal. Despite the information contained in that letter, and the other evidence of record detailing the severity of the Veteran's prostate cancer, the Board cannot ignore the fact the pertinent rating criteria for the Veteran's service-connected prostate cancer (currently at 100 percent) contemplate remission; and therefore precludes the assignment of a permanent and total disability rating at the time of the November 2020 rating decision that is the focus of this appeal. For all these reasons, the Board must find the preponderance of the evidence is against the present appeal, and it must be denied. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.