Citation Nr: A24001739
Decision Date: 01/16/24	Archive Date: 01/16/24

DOCKET NO. 220110-210915
DATE: January 16, 2024

ORDER

Entitlement to a rating in excess of 20 percent for residuals of prostate cancer is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of July 1, 2020, for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35 is granted.

FINDINGS OF FACT

1. On July 1, 2020, the Veteran's prostate cancer was in remission and manifested with voiding dysfunction which do not require the use of an appliance or the wearing of absorbent materials, but with urinary frequency and daytime voiding interval between two and three hours and awakening to void three to four times per night.

2. The competent and probative evidence is at least in relative equipoise as to whether the Veteran's service-connected PTSD, in combination with his service-connected prostate cancer residuals, render him unable to secure or maintain substantially gainful employment consistent with his education and work history beginning July 1, 2020.

3. The criteria for basic eligibility for DEA under Title 38, United States Code, Chapter 35, are met as of July 1, 2020.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 20 percent for residuals of prostate cancer have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, DC 7528.

2. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16, 4.25.

3. The criteria for entitlement to an effective date of July 1, 2020, for the award of DEA are met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 21.3020, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1967 to June 1970.

An April 2020 rating decision reduced the Veteran's disability rating for prostate cancer residuals from 100 percent to 20 percent, effective July 1, 2020.  

In September 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the reduction from 100 percent to 20 percent for residuals of prostate cancer most recently addressed in the April 2020 rating decision.  He also requested entitlement to a TDIU as part and parcel of the evaluation of prostate cancer pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  Additionally, in September 2020, the Veteran submitted a VA Form 21-8940 application for TDIU, wherein he asserted that his service-connected posttraumatic stress disorder (PTSD) rendered him unable to obtain or secure substantially gainful employment.  In October 2020, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision.  

In December 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an October 2020 decision.  In March 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2020 decision.  

In February 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2021 decision, which increased the evaluation of PTSD to 100 percent effective September 30, 2020, awarded DEA effective September 30, 2020, and rendered TDIU moot.  In April 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior January 2021 decision and denied an earlier effective date for the grant of eligibility to DEA under 38 U.S.C. chapter 35 and entitlement to a TDIU.  

In the January 2022 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 October 2020 and January 2021 AOJ 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. 

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.

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1. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer is denied.

A September 2018 rating decision granted service connection for prostate cancer. An initial 100 percent rating was assigned effective August 14, 2018, under DC 7528.  An April 2020 rating decision reduced the rating to 20 percent from July 1, 2020.

The Veteran filed a supplemental claim for a higher rating in September 2020.  The October 2020 rating decision on appeal continued the 20 percent rating.  The Veteran contends that his prostate residuals warrant a higher rating.

DC 7528 contains a temporal element for continuance of a 100 percent rating for prostate cancer residuals.  The rating of 100 percent will continue for at least six (6) months following cessation of treatment.  Therefore, the RO's action was not a "rating reduction," as that term is commonly understood.  See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating).  Rather, the rating reduction in this case was procedural in nature and by operation of law.  The only requirement is that once the examination is conducted, any change in the disability rating is subject to the procedural requirements of 38 C.F.R. § 3.105(e).  A reduction implemented pursuant to 38 C.F.R. § 3.105(e) requires a 60-day notice before VA reduces an evaluation and an additional 60-day notice before the reduced evaluation takes effect.

With regard to the issue of the effective date of the reduction, it appears that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e).  The reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires").  38 C.F.R. § 3.105(e). Specifically, the Veteran was notified of the proposed reduction in an October 2019 proposed rating decision.  In the April 2020 rating decision, the Veteran was notified that the evaluation was decreased to 20 percent, effective July 1, 2020. The effective date is proper.

Having concluded that the RO correctly followed the necessary procedures to reduce the 100 percent rating and assigned the correct effective date, the Board must consider whether a reduction from 100 percent to 20 percent was correct based on the evidence of record and whether the current rating is appropriate.

Under 38 C.F.R. § 4.115b, DC 7528, malignant neoplasms of the genitourinary system are to be evaluated as 100 percent disabling.  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 § 3.105(e).  If there has been no local recurrence of metastasis of the neoplasm, it is to be rated based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant.

Voiding dysfunction is evaluated under the rating criteria for urine leakage, urinary frequency, or obstructed voiding based on the nature of the disability in question. 38 C.F.R. § 4.115a.

With regard to voiding dysfunction causing urine leakage, a 40 percent rating corresponds to the requirement to wear absorbent materials which must be changed 2 to 4 times per day.

For urinary frequency, a maximum rating of 40 percent is warranted where there is evidence of daytime voiding interval less than one hour, or; awakening to void five or more times per night.  38 C.F.R. § 4.115a.

The highest rating available based on obstructed voiding is 30 percent.

Turning to the evidence of record, the October 2019 VA examination report shows the Veteran completed radiation therapy for his prostate cancer in December 2018, and was in a 'watchful waiting status.'  The examiner indicated that the Veteran's prostate cancer was in remission.  The Veteran indicated that he had voiding dysfunction that caused increased urinary frequency with daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times.  Obstructed voiding, manifested as hesitancy, slow stream, weak stream, and decreased force of stream was also indicated.  There was no history of recurrent symptomatic urinary tract or kidney infections.  

The Veteran was afforded an October 2020 VA examination in which the examiner indicated that the Veteran's prostate cancer was in remission.  The examiner notated the Veteran's reported treatment history between March 2020 and July 2020.  Specifically, it is noted that the Veteran went to the ER at a VAMC in March 2020 for gross hematuria and was treated with antibiotics for a urinary tract infection.  He was referred back to urology.  By June 2020, he had developed urinary obstruction due to a urethral stricture secondary to radiation treatment, and a stent was temporarily placed between his bladder and urethra.  The Veteran had additional urinary obstruction in July 2020, as well as kidney stones, which preexisted his radiation treatment, and required VA hospitalization for six days.  He also required a urinary catheter for two weeks.  The Veteran indicated that he has continued to get UTIs which require antibiotic treatment for a week each time.  The examiner indicated that the course of the condition since onset was resolved with residual post-treatment symptoms such as urethral stricture, recurrent UTIs, nocturia, recurrent hematuria, and obstructive symptoms (hesitancy, slow stream, weak stream).

The Veteran had no renal dysfunction.  The examiner noted voiding dysfunction urethral stricture following radiation therapy for prostate cancer that caused urinary leakage but did not require wearing absorbent material.  The voiding dysfunction did not require the use of an appliance.  The examiner also noted that the voiding dysfunction caused increased urinary frequency with daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times.  Obstructed voiding, manifested as hesitancy, slow stream, weak stream, and decreased force of stream was also indicated along with recurrent urinary tract infections secondary to obstruction.  There was a history of recurrent symptomatic urinary tract or kidney infections.  Specifically, the was urinary tract obstruction due to post-radiation urethral stricture.  The treatment applied was long-term drug therapy described as intermittent treatment with antibiotics as needed for UTIs.  At the conclusion of the examination the examine remarked that the Veteran "had a stent placed in June 2020 from the bladder to the urethra due to acute urinary obstruction - it is no longer in place."  The examiner also remarked that the Veteran's kidney stones were "shown on CT at the time of his original diagnosis and treatment. They are not caused by the prostate cancer or its treatment." 

After a careful review of the evidence, the Board finds that an increase in the Veteran's current 20 percent rating is not warranted.

As noted, the Veteran's cancer has been successfully treated with no recurrence or metastasis.  Thus, the condition is rated according to residuals (voiding dysfunction or renal dysfunction) as governed by 38 C.F.R. § 4.115b, DC 7528.  As noted, the competent evidence of record is silent for renal dysfunction.  The Veteran's residual symptoms of prostate cancer are predominantly manifested by voiding dysfunction, including urinary frequency and obstructed voiding.

There is no evidence that the Veteran's voiding dysfunction required a daytime voiding interval of less than one hour, or; awakening to void five or more times per night.  Rather, both the October 2019 and October 2020 examiners indicated that the Veteran's voiding dysfunction was productive of daytime voiding interval between two and three hours, and nighttime awakening to void three to four times.  Although the Veteran's symptoms reflect obstructive voiding, there is no indication of urinary retention requiring intermittent or continuous catheterization.  Moreover, there is no evidence that the Veteran required absorbent materials to be changed two to four times per day.    

Indeed, the October 2020 examiner indicated that several post-treatment residual symptoms were present including urethral stricture, recurrent UTIs, nocturia, and recurrent hematuria.  UTIs that are recurrent symptomatic infections requiring drainage by stent or nephrostomy tube; or requiring greater than two hospitalizations per year; or requiring continuous intensive management, warrant a 30 percent rating.  However, as the examiner remarked, the temporary stent was removed.  The evidence does not demonstrate that the Veteran had more than two hospitalizations per year or required continuous intensive management.  Thus, a higher 30 percent rating is also not warranted. 

The Board finds that a rating in excess of 20 percent is not warranted at any time during the appeal.  In reaching its conclusions, the Board acknowledges the Veteran's belief that his prostate cancer residuals disability is more severe than as reflected by the currently assigned disability rating.  The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule.  While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his prostate cancer residuals.

As the medical evidence of record does not contain any objective findings of the need to wear absorbent materials which must be changed two to four times per day, daytime voiding interval less than one hour, or; awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization, it persuasively weighs against the claim for a rating in excess of 20 percent. Consideration has also been given to assigning staged ratings.  However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In denying a higher rating in excess of 20 percent, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, there is no reasonable doubt to be resolved with respect to this issue.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to a TDIU is granted.

The Veteran contends that his service-connected PTSD and residuals of prostate cancer have prevented him from securing or maintaining substantially gainful employment.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.

Historically, the Veteran was awarded service connection for prostate cancer in a September 2018 rating decision with a total (100 percent) disability rating effective August 14, 2018.  In April 2020, a rating decision decreased the disability rating for residuals of prostate cancer from 100 percent to 20 percent effective July 1, 2020.  

In September 2020, VA received the Veteran's VA Form 21-8940 claim for TDIU, which was accompanied by a VA Form 20-0995 Supplement Claim.  In his application for TDIU, the Veteran asserted that his service-connected PTSD prevented him from securing or following any substantially gainful employment and that he has been unemployed since 2012.  In his supplemental claim, the Veteran requested an increased rating for his service-connected residuals of prostate cancer and asserted that TDIU was raised as part and parcel of the increased rating claim. 

The Board construes the September 2020, claim for an increased rating for residuals of prostate cancer as an implicit claim for a TDIU.  See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider TDIU); see also Rice v. Shinseki (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record).

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Id.

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2) disabilities resulting from common etiology or a single accident,

(3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4) multiple injuries incurred in action, or

(5) multiple disabilities incurred as a prisoner of war.

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 work-place stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

The Veteran was service connected for PTSD (rated 50 percent from August 6, 2009, and 100 percent from September 30, 2020) and prostate cancer (rated 100 percent from August 14, 2018, and 20 percent from July 1, 2020).  He also had a noncompensable rating for erectile dysfunction (from October 16, 2019).  As pertinent to the appeal, the Veteran's combined rating was 60 percent from July 1, 2020, and 100 percent from September 30, 2020.  

The Board concludes that the Veteran's service-connected disabilities can be considered one injury for the limited purpose of establishing entitlement to TDIU, as they are multiple injuries incurred in action.  In this respect, a January 2011 rating decision awarded service connection for PTSD based upon Vietnam combat service.  A September 2018 rating decision awarded service connection for prostate cancer associated with herbicide exposure in Vietnam.  Together, they constitute a single disability resulting from the Veteran's Vietnam service, and he meets the schedular requirement of 60 percent disabling beginning July 1, 2020.  C.F.R. §§ 4.16(a), 4.25.

The Board notes that the Veteran's less than total rating of 60 percent was from July 1, 2020, to September 29, 2020, because he had a 100 percent rating prior to July 1, 2020, and from September 30, 2020.  Since entitlement to a TDIU offers a one-year lookback period from the date of the increased rating claim, September 30, 2020, the Board will address entitlement to a TDIU beginning July 1, 2020.

The Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.

The evidence demonstrated that the Veteran had not worked since July 2012. Accordingly, the Veteran met the economic component as defined in Ray.

The non-economic requirement involves a consideration of the Veteran's work history, education, skills, and training as well as consideration of his physical and mental abilities required by the occupation at issue.

On the Veteran's September 2020 VA Form 21-8940, he indicated that his service-connected PTSD disability prevented him from securing or following any substantially gainful employment.  He reportedly became too disabled to work in July 2012.  He reported two years of college matriculation and that his prior employment consisted of being a school administrator for 17 years.  He also received training in engineering drafting technology.  

The evidence of record contains the Veteran's civilian employment history after his discharge from military service as reported in an August 2010 VA examination for PTSD.  The Veteran's employment includes working in a county hospital as an orderly from 1970-1972, airline catering from 1972 to 1991, various odd jobs such as social services, a bank, and self-employment from 1991 to 1996.

The Veteran's DD 214 shows his military specialty as tech supply specialist.

The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  See Ray, 31 Vet. App. 58.  

The October 2019 VA examination report for prostate cancer indicated that his residuals of prostate cancer would impact his ability to work and recommended light-duty work in proximity to a restroom.  The October 2020 examination report indicated that the Veteran's "chronic fatigue would make it difficult for him to function in any workplace at this time. The fatigue is a result of his prostate cancer, its treatment, and its residuals."

A May 2020 VA treatment note indicates the Veteran had good exertional tolerance as he reported exercised with both cardio/weights until quarantine and was currently walking during the pandemic.  In a November 2020 treatment note he reported that he remained active, exercising daily.

The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity.  See Ray, 31 Vet. App. 58.  The competent and contemporaneous evidence of record reasonably demonstrate that the Veteran's service-connected PTSD manifested with symptoms of such frequency, severity, and duration to impede his ability to perform the type of mental abilities required by the occupation(s) at issue with consideration of the Veteran's education and prior work history.

At the January 2021 VA PTSD examination, the examiner determined that the Veteran's PTSD symptoms included panic attacks that occur weekly or less often; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; obsessional rituals which interfere with routine activities; and persistent danger of hurting self or others.  The examiner assessed that overall, the Veteran's impairment was consistent with total occupational and social impairment.

The Board concludes that the evidence of record discussed above is in relative equipoise as to whether the Veteran's service-connected disabilities precluded a substantially gainful occupation beginning July 1, 2020. Although the Veteran is able to exercise and perform activities such as cardio and weightlifting, the Board acknowledges the report of chronic fatigue caused by his prostate cancer residuals, which when reviewed in tandem with his PTSD examination report demonstrates reasonable difficulty in regularly performing job-related duties. Thus, the Board finds that the Veteran is prevented from securing or following a substantially gainful occupation due to his service-connected disabilities, and therefore, is unemployable for VA purposes from July 1, 2020.  38 C.F.R. § 4.16.

3. Entitlement to an effective date of July 1, 2020, for the award of DEA benefits is granted.

As discussed above, the Board finds that the Veteran is entitled to the award of a TDIU.  DEA benefits may not be awarded prior to the effective date of an award of a permanent and total service-connected disability rating.  The proper effective date for the award of DEA benefits is July 1, 2020, the same date as the award of TDIU.  38 U.S.C. §§ 3501, 3510.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Telamour

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.