Citation Nr: A25041292 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 241104-489480 DATE: May 6, 2025 ORDER Entitlement to a 60 percent rating, but no higher, for prostate cancer status post brachytherapy with erectile dysfunction and urinary incontinence (hereinafter prostate cancer) from July 1, 2020, and no earlier, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his prostate cancer is manifested by wearing absorbent materials which must be changed more than four times per day from July 1, 2020, but no earlier. 2. The evidence persuasively shows that throughout the period on appeal the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disability when considering his education, training, and employment history. CONCLUSIONS OF LAW 1. From July 1, 2020, the criteria for entitlement to a rating of 60 percent, but no higher, for the residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2023, the Veteran filed a supplemental claim for an increased rating for prostate cancer and entitlement to TDIU. The November 2023 rating decision increased the disability rating of the Veteran's prostate cancer from 40 percent to 60 percent effective September 1, 2023. The March 2024 rating decision denied entitlement to TDIU. In July 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of November 2023 and March 2024 decisions. In July 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2023 and March 2024 decisions. In the November 2024 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 November 2023 (prostate cancer) and March 2024 (TDIU) decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decisions which were subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. In November 2022, VA amended VA Form 21-526EZ and, in May 2024, VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The supplemental claim in this appeal was originally filed in May 2022, prior to the amended version of VA Form 30-0995. However, the Veteran's attorney has waived the right to a pre-decisional hearing under 38 C.F.R. 3.103(b) and (d). The Board acknowledges that 38 C.F.R. § 20.202(c)(2) provides that a Veteran may modify a Notice of Disagreement and change Board dockets by submitting a new Notice of Disagreement within one year of notification of the decision on appeal or within 60 days of the date that the Board received the original Notice of Disagreement, whichever is later. In this case, the Veteran's attorney has waived any additional development and has specifically asked the Board not to remand this appeal. The Board finds that the Veteran has waived the right to switch dockets. Williams v. McDonough, 37 Vet. App. 305 (2024). Therefore, the Board will proceed with adjudication of the appeal. 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. The Board notes that there is an outstanding December 2024 motion to advance the case on the docket (AOD) based on advanced age. An AOD motion may be granted if the Veteran is 75 or more years of age 38 U.S.C. § 7107 (b); 38 C.F.R. § 20.902 (c). The Board finds that the Veteran is 75 years old. Accordingly, the Veteran's AOD motion is granted. Id. 1. Entitlement to a 60 percent rating, but no higher, for prostate cancer from July 1, 2020, and no earlier Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469. Generally, lay testimony is not competent to prove a matter requiring medical expertise. Id. at 470. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The current appeal period begins on April 2, 2020, the date the AOJ conducted a special review of the Veteran's prostate cancer, plus the one year look back period. Gaston v. Shinseki, 605 F.3d 797, 982 (Fed. Cir. 2010). The Veteran's prostate cancer is rated 60 percent disabling under 38 C.F.R. § 4.115b, DC 7528. Prostate cancer is rated at 100 percent for the period the cancer is active and for a period of six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. 38 C.F.R. § 4.115b, DC 7528. If there has been no local recurrence or metastasis as shown on a subsequent examination, the evaluation of the residuals of prostate cancer is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. The Veteran predominantly has voiding dysfunction. Voiding dysfunction should be rated as either urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Under the urine leakage criteria, disability ratings are granted based on the frequency of changing absorbent materials. Id. A 20 percent disability rating is assigned when the Veteran requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent disability rating is assigned when the Veteran requires the wearing of absorbent materials which must be changed two to four times per day. A 60 percent disability rating is assigned when the Veteran requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. Under the urinary frequency criteria, disability ratings are granted based on daytime or nighttime voiding intervals. Id. A 10 percent disability rating is assigned when the Veteran has a daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent disability rating is assigned when the Veteran has a daytime voiding interval between one and two hours or awakening to void three to four times per night. A 40 percent disability rating is assigned when the Veteran has a daytime voiding interval less than one hour or awakening to void five or more times per night. Id. Under the obstructed voiding criteria, disability ratings are granted based on the presence of obstructive symptomatology. Id. A noncompensable rating is assigned when the Veteran has obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. A 10 percent disability rating is assigned when the Veteran has marked obstructive symptomatology with any one or a combination of the following: post void residuals greater than 150 cc; uroflowmetry, markedly diminished peak flow rate less than 10 cc per second; recurrent urinary tract infections secondary to obstruction; or stricture disease requiring periodic dilation every two to three months. A 30 percent disability rating is assigned when the Veteran has urinary retention requiring intermittent or continuous catheterization. Id. From July 1, 2020 to August 31, 2023, the Veteran is in receipt of a 40 percent rating for prostate cancer, status post brachytherapy with erectile dysfunction and urinary incontinence. From September 1, 2023, the Veteran is in receipt of a 60 percent rating for prostate cancer, status post brachytherapy with erectile dysfunction and urinary incontinence. The Veteran is in receipt of special monthly compensation for the loss of use of a creative organ from September 28, 2015. The Veteran argues that his symptoms warrant a 60 percent rating throughout the appeal period. Specifically, the Veteran argues that he uses the bathroom at least eight to ten times a day and must change his absorbent materials six to eight times a day. May 2022 Correspondence. VA obtained a records review in January 2020. At that review, the examiner found that the Veteran had a diagnosis of prostate cancer status post brachytherapy with erectile dysfunction and urinary incontinence which was diagnosed in 2010. The Veteran's cancer was in remission. The examiner found that the Veteran has voiding dysfunction. The Veteran has urine leakage requiring the use of absorbent material which must be changed two to four times per day but does not require the use of an appliance. The Veteran has increased urinary frequency with daytime voiding interval between two to three hours and nighttime awakening to void three to four times. The Veteran has obstructed voiding with symptoms of hesitancy, slow stream, weak stream, and decreased force of stream. The Veteran does not have a history of recurrent urinary tract or kidney infections. The Veteran has erectile dysfunction. The examiner found that the Veteran's urinary dysfunction is "inconvenient and socially awkward in any workplace." Private treatment records include a January 2020 normal cystoscopy conducted by Dr. C.H. December 2021 VA treatment records show that the Veteran has urinary incontinence secondary to his prostate cancer. VA obtained another records review in May 2022. The examiner found that the Veteran had a diagnosis of prostate cancer status post brachytherapy with erectile dysfunction and urinary incontinence, which was diagnosed in 2015. The Veteran's prostate cancer was in remission. The examiner found that the Veteran has voiding dysfunction. The Veteran has urine leakage requiring the use of absorbent material which must be changed more than four times per day but does not require the use of an appliance. The Veteran has increased urinary frequency with daytime voiding interval between one and two hours and nighttime awakening to void three to four times. The Veteran has obstructed voiding with symptoms of slow stream, weak stream, and decreased force of stream. The Veteran has erectile dysfunction. The Veteran does not have a history of chronic prostatitis, urethritis, epididymitis, orchitis, or urinary tract infection. The examiner found that the Veteran requires frequent easy access to a restroom to address his voiding dysfunction. Given the degree of voiding dysfunction reported by the Veteran, the examiner found that "gainful, regular employment in the public sector would likely be difficult." The examiner found that the Veteran would likely only be able to perform "sedentary work in the setting of his home." The Veteran underwent a VA examination in July 2022. At that examination, the examiner found that the Veteran had a diagnosis of prostate cancer status post brachytherapy with erectile dysfunction and urinary incontinence, which was diagnosed in 2015. The Veteran's prostate cancer was in remission. The examiner found that the Veteran has voiding dysfunction. The Veteran has urine leakage requiring the use of absorbent material which must be changed two to four times per day but does not require the use of an appliance. The Veteran has increased urinary frequency with daytime voiding interval between two to three hours and nighttime awakening to void three to four times. The Veteran does not have obstructed voiding. The Veteran has erectile dysfunction. The Veteran does not have a history of chronic prostatitis, urethritis, epididymitis, orchitis, or urinary tract infection. The VA examiner found that the Veteran required ready access to the bathroom at his place of work for his prostate and urinary conditions. The examiner found the Veteran has other medical conditions which affect his ability to be employed which were outside the scope of the current examination. The Board finds the January 2020, May 2022, and July 2022 VA examination and opinions to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The examiners reviewed the file, addressed the relevant medical history, considered the Veteran's lay statements, and provided a rationale. The Board finds that, during the entire period on review, the Veteran's prostate cancer was in remission. Therefore, the Board finds that the Veteran is not entitled to a rating of 100 percent based on active disease or current treatment. 38 C.F.R. § 4.115b, DC 7528. No VA examiner has found that the Veteran has renal dysfunction, so the Veteran's prostate cancer should be rated based on voiding dysfunction. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Under the criteria for obstructed voiding, the Board finds that the Veteran would be entitled to a noncompensable rating throughout the period on review. The Veteran had symptoms of hesitancy, slow stream, weak stream, and decreased force of stream, but none of these symptoms were noted to be marked. No examiner found that the Veteran had post void residuals greater than 150 cc; uroflowmetry, markedly diminished peak flow rate; recurrent urinary tract infections secondary to obstruction; or stricture disease requiring periodic dilation every two to three months. Additionally, the Veteran did not require intermittent or continuous catheterization. Under the criteria for urinary frequency, the Board finds that the Veteran would be entitled to a 40 percent rating throughout the period on review. The September 2023 VA examiner found that the Veteran awakens to void five or more times per night. The Board finds that reasonable doubt exists as to the disability rating the Veteran is entitled to under the criteria for urine leakage. The evidence does not show that the Veteran requires the use of an appliance. The Veteran's May 2022 statement notes that he must change his absorbent material between six and eight times per day, corresponding to a 60 percent rating. The Board acknowledges that the Veteran is competent to report these symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran credible. The May 2022 VA examiner found that the Veteran must change his absorbent material more than four times in a day, also corresponding to a 60 percent rating. The January 2020 and July 2022 VA examiner found that the Veteran must change his absorbent material two to four times per day, corresponding to a 40 percent rating. The Board resolves all doubt in the Veteran's favor and finds that he is entitled to a 60 percent rating throughout the entire period on review. The evidence shows that the Veteran has voiding dysfunction characterized by urine leakage. The Veteran's urine leakage requires the Veteran to wear absorbent materials that must be changed more than four times a day. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Veteran is entitled to an increased rating of 60 percent, but no higher, from July 1, 2020, and no earlier. 2. Entitlement to a TDIU The Veteran contends that the residuals of his prostate cancer have rendered him unable to obtain or maintain substantially gainful employment as a result of his service-connected prostate cancer from July 1, 2020. As a preliminary matter, the Board notes that the Veteran has been found disabled by the Social Security Administration from August 2007 due to a non-service connected back condition. Under the applicable criteria, total disability ratings for compensation based on TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, at the time of the July 2024 decision, the Veteran met the minimum percentage requirements set forth in 38 C.F.R. § 4.16(a) for award of TDIU. The Veteran is herein rated at 60 percent for prostate cancer from July 1, 2020. The Veteran is not service connected for any other disabilities. In addition to the evidence discussed above, the Veteran underwent a VA examination in September 2023. At that examination, the examiner found that the Veteran's frequent nighttime awakening greater than five times a night and changing of absorbent materials every one to two hours during the day impact his ability to perform any type of occupational task. Additionally, the Veteran reports random leakage if pressure is placed on his lower abdomen, which also impacts the Veteran's ability to perform any type of occupational tasks by causing impairment to performing activities "such as lifting or working in an environment requiring continuance work more than one hour due to Veteran's symptoms." The Veteran submitted to another examination in January 2024. The Veteran reported needing pads for urination. The examiner diagnosed urinary incontinence and noted that the Veteran must change absorbent material more than four times per day. The examiner determined that there was decreased ability to work secondary to the need for frequent urination and urinary leakage, loss of sexual function, loss of ability to ambulate freely related to pelvic and back pain radiating down the left leg, and loss of close relationships from decreased intimacy. In March 2024, VA obtained an addendum opinion from the January 2024 VA examiner. The VA examiner explained that the Veteran's prostate cancer status post brachytherapy does not specifically prohibit him from working but does require accommodation for frequent urination. The examiner explained that the Veteran "could certainly attend to work functions." With respect to the economic factor, the Veteran has an associate degree in music. He worked toward a bachelor's degree in jazz but did not obtain that degree. Addendum to September 2023 VA 21-8940. The Veteran worked as a toolmaker for approximately 29 years. The Veteran described his job as "[making] jigs and fixtures to be used to repair or make aircrafts." May 2022 Correspondence. The Veteran described the size of these tools as being "as small as boxes and some as big as houses." With respect to the mental ability component, the evidence does not show that the Veteran has any mental ability impairment which would affect his ability to work. While the Board acknowledges the Veteran's contention that his prostate cancer has caused the Veteran "difficulty with concentration, getting along with others, and demonstrating reliability and productivity," the Board finds that the Veteran's prostate cancer and resultant urinary incontinence could certainly cause the Veteran to worry about incontinence and urinary leakage in the workplace, but would not render him unable to concentrate, unable to get along with others, or to be unproductive at work. Regarding the physical ability component, the Veteran's statements and VA examination findings indicate that during the appeal period the Veteran's service-connected prostate condition did affect his capacity for physical work tasks and did render him unable to secure and follow substantially gainful employment. The Veteran has endorsed changing his absorbent materials six to eight times per day. The January 2020 examiner found that the Veteran's urinary dysfunction is "inconvenient and socially awkward in any workplace." The May 2022 examiner found that the Veteran requires frequent easy access to a restroom to address his voiding dysfunction. Given the degree of voiding dysfunction reported by the Veteran, the May 2022 examiner found that "gainful, regular employment in the public sector would likely be difficult." The May 2022 examiner found that the Veteran would likely only be able to perform "sedentary work in the setting of his home." The July 2022 VA examiner found that the Veteran required ready access to the bathroom at his place of work for his prostate and urinary conditions. The September 2023 examiner found that the Veteran's frequent nighttime awakening greater than five times a night and urinary frequency and changing of absorbent materials every one to two hours during the day impact his ability to perform any type of occupational task. Additionally, the Veteran reports random leakage if pressure is placed on his lower abdomen, which also impacts the Veteran's ability to perform the type of work that he did as a toolmaker. See September 2023 Third Party Correspondence. The Veteran's representative contends that the March 2024 addendum opinion is inadequate for rating purposes. The Board agrees. The examiner's opinion is vague and conclusory as it does not explain the type of accommodation that would be required and does not explain what is meant by "work functions." (Continued on the next page) ? Resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected prostate cancer status post brachytherapy with erectile dysfunction and urinary incontinence has rendered him unable to obtain or maintain substantially gainful employment consistent with his education and industrial experience. The Veteran has over 29 years of experience as a toolmaker. His career as a toolmaker means he does not have the experience necessary to work either remotely or in an office environment. The medical evidence shows that the Veteran requires frequent and easy access to a restroom and changes his pad multiple times a day. Employment as a toolmaker would be significantly hindered, if not impossible, due to the frequent need to change his pads and urinate. Therefore, entitlement to TDIU is granted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Bush, 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.