Bailey v. Wilkie, Case Number 19-2661, decided January May 6, 2021 involves whether a veteran must file a formal claim for secondary service connection for residuals of prostate cancer when those residuals are reasonably raised during the claim.
The Court stated:
We hold that, under DC 7528, a single
evaluation may be assigned for residuals of prostate cancer based only on
voiding or renal dysfunction, whichever is predominant. Other residuals may be
compensated under appropriate DCs not in § 4.115b if they are separately
service connected as secondary to prostate cancer. We further hold that,
pursuant to 38 C.F.R. § 3.155(d)(2), when entitlement to secondary service
connection for non-voiding and non-renal residuals is raised while VA is
evaluating service-connected prostate cancer, the claimant need not file a
separate, formal claim for secondary service connection for those residuals.
Instead, VA must consider those "complications" in connection with a
properly initiated claim concerning the
prostate cancer evaluation.
The veteran sought service connection for prostate cancer and given a totally disabling rating in August 2013. During a September 2014 VA medical examination to access severity of the residuals, the examiner found remission but use of 5-6 absorbent pads per day. The 100% rating was proposed to be reduced to 60%. The veteran objected to the reduction and submitted a DBQ reflecting other residuals (frequent bowel movements, diarrhea and swelling of the feet). The reduction was implemented nonetheless and a NOD was filed. A new examination noted a need for future DBQ for rectum/anus exam and arteries/viens. Subsequently, he filed a claim for service connection for TDIU due to prostate cancer and secondary leg swelling.
The Board affirmed the discontinuance of the 100% prostate residuals rating and denied a rating higher than 60% for the residuals. The Board found the predominant residual was voiding dysfunction and under DC 7258 a 60% rating was warranted. The Board noted the diarrhea and swelling claims allegedly due to radiation treatment, but stated "The rating schedule does not contemplate these symptoms/disabilities when evaluating the residuals of prostate cancer. In fact, the rating schedule is specific in that it directs renal and voiding dysfunctions to be rated, only." Id. at *4. Subsequently, the RO granted 10% ratings for swelling and granted TDIU with effective dates of January 2019. The effective date was based on the fact these were not claimed prior to January 2019.
The Court began by considering DC 7528 and stating the opening sentence of the regulation requires the rating to be by reference to the predominant (worse) voiding or renal dysfunction. Id. at *7-8.
In sum, the meaning and scope of DC 7528 is clear from its text and structure, and that plain meaning is confirmed by its history and purpose. DC 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; other non-voiding and non-renal dysfunctions do not factor into a schedular evaluation under that DC. As a result, entitlement to separate evaluations for non-voiding and non-renal dysfunctions related to prostate cancer cannot be considered part and parcel of a claim as to the proper evaluation level for prostate cancer residuals under DC 7528.
Id. at *9
But, the Court did not end the matter there. Instead, it turned to the veteran’s argument that: “regardless of the scope of DC 7528, the Board was required to address entitlement to additional compensation for diarrhea and lower extremity lymphedema under other DCs because secondary service connection for those conditions was reasonably raised by the record during the course of his appeal before VA.” Id. at *11. The Court found leg swelling and diarrhea were reasonably raised by the record. It then noted:
As explained above, the record
reasonably raised the issues of entitlement to secondary
service connection for diarrhea and
lower extremity lymphedema in March 2016—i.e., after the amendments to §§ 3.155
and 3.160 became effective in March 2015. It is undisputed that, prior to January
2019, Mr. Bailey had not filed a formal claim on the prescribed application
form for those secondary conditions; however, it is also undisputed that he
properly initiated a dispute as to VA's December 2015 reduction of his
evaluation for prostate cancer residuals under DC 7528. Mr. Bailey therefore
seeks to tie the secondary diarrhea and lymphedema claims to the properly initiated
prostate cancer residuals claim, using § 3.155(d)(2) as the hook.
Section 3.155(d)(2) provides, in
relevant part, that VA will
consider all lay and medical evidence
of record in order to adjudicate entitlement to benefits for the claimed
condition as well as entitlement to any additional benefits for complications
of the claimed condition, including those identified by the rating criteria for
that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities.
38 C.F.R. § 3.155(d)(2).
Id. at *13. The Court
then defined “conclude[d] that the ordinary meaning of
"complications" in § 3.155(d)(2) encompasses disabilities caused or
aggravated by treatment for a service-connected disability.” Id. at *14. Ultimately “VA is obligated to develop and
adjudicate claims for secondary service connection that are reasonably raised
during the processing of a properly initiated claim as to the primary
service-connected disability's evaluation level.” Id. at *16.
The Court also explained of Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) that it
reiterated that, although the 2015
amendments to §§ 3.155 and 3.160 "substantially revised the claim
initiation process," they did "'not alter the VA's general practice
of identifying and adjudicating issues and claims that logically relate to the
claim pending before the VA'" and "generally would not preclude the
VA from identifying, addressing, and adjudicating related matters that are
reasonably raised by the evidence of record which the claimant may not have
anticipated or claimed.'" Id. at 1337 (quoting VJG, 818 F.3d at 1356). As
explained above, this includes reasonably raised claims for secondary service connection
for disabilities due to treatment for an already service-connected disability.
Id. at *17.
Judge Pietsch wrote a concurrence to note “The Court's decision should not be read to suggest that every complication must be adjudicated as a claim for secondary entitlement or that every complication warrants additional compensation. Otherwise, Part 4 will be thrown into disarray, and such a rule may also cause the Court to infringe on the Secretary's exclusive responsibility to set rating criteria.” Id. at *24. She then wrote:
I am convinced by the plain regulatory language and parts of the Court's analysis that the
Secretary's assertion that § 3.310(a) benefits cannot fall
under § 3.155(d)(2) is not correct and that lymphedema and diarrhea, in the
context of this case, are "complications" of the appellant's prostate
cancer. That is as far as I need to go to resolve this case. It is enough to
say that the disorders that the appellant experienced are plainly
"complications" of prostate cancer and then instruct the Board to
"consider . . . entitlement to any additional benefits" for those
disorders. The form of that consideration – and the implications that it has
for ancillary issues like proper effective dates – is not a matter that I
address at present.” Id. at *25.
This case reaffirms that the VA must develop secondary conditions that are reasonably raised by the evidence. It is a conclusion that at one time seemed uncontested by the VA, but seems to be more frequently a focus of concern.
Decision by Chief Judge Bartley and joined in by Judge Toth with concurrence by Judge Pietsch.
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