Citation Nr: A24043147 Decision Date: 08/02/24 Archive Date: 08/02/24 DOCKET NO. 230118-315161 DATE: August 2, 2024 ISSUES Entitlement to a disability evaluation in excess of 20 percent for prostate cancer. Entitlement to service connection for hypertension secondary to post-traumatic stress disorder ("PTSD"). ORDERS Entitlement to a disability evaluation of 40 percent, but no higher, for residuals of prostate cancer with voiding dysfunction is GRANTED. Entitlement to service connection for hypertension secondary to PTSD is REMANDED. FINDING OF FACT The Veteran's prostate cancer residuals cause voiding dysfunction requiring the wearing of absorbent materials which must be changed approximately three times per day. CONCLUSION OF LAW The criteria for entitlement to a 40 percent rating, but no higher, for residuals of prostate cancer with voiding dysfunction are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7528. FACTUAL AND PROCEDURAL HISTORY The Veteran served on active duty in the United States Army from May 1969 to May 1971. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2022 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA), the agency of original jurisdiction. In the January 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2022 decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the RO decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this Decision. However, because the Board is remanding the claim of entitlement of service connection for hypertension, any evidence the Board could not consider will be considered by the RO in the readjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). REASONS AND BASES FOR THE FINDING AND CONCLUSION Disability Rating Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38?U.S.C. §?1155; 38?C.F.R. §§?3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38?C.F.R. §?4.21. In accordance with sections 4.1 and 4.2 of Title 38 of the Code of Federal Regulations and Schafrath v. Derwinski, 1?Vet. App.?589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. at 126. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Prostate cancer is evaluated under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. According to the Note associated with Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure; if there has been no local reoccurrence or metastasis, the disability is to be rated on the residuals of voiding dysfunction or renal dysfunction, whichever is predominant. As the evidence of record detailed below does not reveal any renal dysfunction, a disability rating under this alternative is not warranted. A rating based on the diagnostic criteria for voiding dysfunction may be evaluated based on urine leakage, urinary frequency, or voiding obstruction. 38 C.F.R. § 4.115a. While the Veteran's prostate cancer has also resulted in erectile dysfunction, a separate award of service connection for erectile dysfunction has already been granted to the Veteran, as well as special monthly compensation for loss of use of a creative organ, and those issues are not currently before the Board. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent disability rating. 38 C.F.R. § 4.115a. Where such requires the wearing of absorbent materials which must be changed two-to-four times per day, a 40 percent disability rating is warranted. Where such requires the wearing of absorbent materials which must be changed less than two times per day, a 20 percent disability rating is warranted. Id. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Urinary frequency with daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent disability rating. 38 C.F.R. § 4.115a. A daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent disability rating. A daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent disability rating. Id. Finally, obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent disability rating. 38 C.F.R. § 4.115a. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two-to-three months, warrants a 10 percent disability rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year. Id. Analysis-Prostate Cancer Disability Rating The Veteran is seeking a disability rating in excess of 20 percent for his service-connected prostate cancer. The Board reviewed all evidence of record, including the February 2019, January 2020, and May 2022 VA examinations, as well as the Veteran's treatment records relevant to the period on appeal. The February 2019 VA examination noted the Veteran has symptoms of a voiding dysfunction which requires using absorbent materials which must be changed less than two times per day. The voiding dysfunction was noted to cause a daytime voiding interval between one and two hours, nighttime awakening to void two times, with a slow stream. There is no indication in the Veteran's claims file that the Veteran required catheterization during the appeal period. See VA treatment records. The January 2020 VA examination noted the Veteran has symptoms of a voiding dysfunction which requires nighttime awakening to void two times, with a slow stream, and urinary retention requiring intermittent catheterization. Finally, the Veteran's VA treatment records from February and May 2022 reflect that the Veteran's leakage symptoms increased substantially, noting specifically that the Veteran goes through about three diapers per 24 hours. Based on this evidence, the Board finds that a rating of 40 percent most closely approximates the Veteran's voiding dysfunction. The evidence does not indicate that the Veteran experienced daytime voiding intervals of less than one hour or nighttime voiding of five or more times per night. The February 2019 and January 2020 VA exams, as discussed above, indicated nighttime voiding intervals of two times per night. However, the February and May 2022 VA treatment records indicated that the Veteran required the wearing of absorbent materials which must be changed approximately three times per day. Therefore, a higher disability rating is warranted for urine leakage. After considering the record on appeal, the Board finds that the evidence persuasively weighs in favor of a finding that the Veteran's prostate cancer symptoms more closely approximate a 40 percent rating. Consequently, the Appellant's claim of increased rating for prostate cancer is granted. REASONS FOR REMAND As discussed below, the Board finds that there is a pre-decisional duty-to-assist error in this case, and a VA addendum opinion is required, on remand, to cure the error. The Veteran was afforded a VA-contracted examination for his hypertension in December 2021 in which the examiner provided a negative etiological opinion, indicating, in pertinent part, that the claimed hypertension disability was not proximately due to or the result of the service-connected PTSD. The examiner did not opine as to whether the claimed hypertension had onset in and was etiologically related to service. The regulations adopted after, and because of, Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), provide that service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). And that secondary service connection may be granted for aggravation of a disease or injury by a service-connected disability. Id. § 3.310(b). However, during the pendency of the appeal, the law of secondary service connection changed materially. The United States Court of Appeals for the Federal Circuit (Federal Circuit) had recent occasion to consider matters relevant to the instant case and their holding illuminates the Board's way (and the RO's on remand). In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit held that under the causation standard of section 1110 of Title 38 of the United States Code, secondary service connection is warranted where a nonservice-connected disability would have been less severe "but-for" a service connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. Id. at 1365. The Federal Circuit concluded the causation standard "proximately due to" under section 3.310(b) of the regulations is inconsistent with section 1110 of the statute and, therefore "unlawful." As such, the Board concludes that the opinion in the record before the RO did not address the correct legal standards and the holding in Spicer. The AMA abrogated the Secretary's duty to assist for cases on appeal to the Board. 38 U.S.C. § 5103A(e)(2). But the duty to assist remains in full force when a claim is before the RO for adjudication. Id. § 5103A(e)(1). And if the Board identifies a duty-to-assist error that occurred prior to the issuance of the decision on appeal, it must remand the matter to the RO to cure the error. Id. § 5103A(f)(2)(A). So, the question for the Board is whether deciding the claims without obtaining addendum medical opinions that squarely address the omissions contained in the December 2021 examination constitutes a pre-decisional duty-to-assist error, for which the Board must remand the claim to cure. Accordingly, the focus of the inquiry is on what was before the RO at the time of the decision on appeal. For the reasons set forth above, based only on the evidence of the record at the time the RO issued the rating decisions on appeal, the Board concludes that an addendum medical opinion should have been obtained prior to a decision being made on this claim because the prior examination was inadequate for adjudication. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). The Board concludes that the error must be cured, on remand, by obtaining an addendum medical opinion, as outlined below, to include questions that address the correct legal standards and the holding in Spicer. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the December 2021 VA-contracted examiner, or a suitable examiner if this individual is not available, to address the nature and etiology of the claimed hypertension. The Veteran's electronic claims file, including a copy of this remand decision, must be made available to the examiner for review in connection with the opinion. The examiner is asked to offer an opinion as to the following: a). Whether it is approximately at least as likely as not that the Veteran's hypertension had its onset in service and is etiologically related to service. b). Whether it is approximately at least as likely as not that the service-connected post-traumatic stress disorder was a "but-for cause" of (caused an increase in the severity of, or an inability to treat) the Veteran's hypertension? Spicer, 61 F.4th at 1364-66. A complete rationale, including citation to appropriate medical principles, for all opinions reached must be provided. The examiner is respectfully reminded of the principles set forth in Mittleider, 11 Vet. App. at 182, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder; that the absence of in-service evidence of disability is not fatal to a service connection claim, Ledford, 3 Vet. App. at 89; and that the diagnosis of hypertension is established fact on this record and not in dispute. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 328. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.P. Blackburn 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.