I want to talk to you about the Bailey case, a recent Veterans Court panel decision. Here’s a link to the CAVC’s decision so you can follow along.
On January 6, 2021, the Veterans Court weighed in on some guidelines to help veterans with the VA ratings for prostate cancer. Chief Judge Bartley wrote the opinion for the Court, joined by Judge Toth and Judge Pietsch. Judge Pietsch issued a concurring opinion.
Before we can dive into this case, we need to lay out a couple predicates.
Black Veterans and Prostate Cancer.
This needs to be talked about, so I’m leading with it.
One in six Black men will be diagnosed with prostate cancer. Black veterans usually have worse outcomes with prostate cancer. As the VA itself acknowledges, Black men in the general population are more than twice as likely as white men to die from prostate cancer.
The theory in the largely white medical academic community has been that prostate cancer is just biologically more aggressive in African American men.”
But another study provided a more telling predictor. When it comes to prostate cancer, Black men have similar survival rates to white counterparts if they have equal access to healthcare.
If you are a Black veteran with prostate cancer, or an advocate of a Black veteran with prostate cancer, this case review will be particularly important. While it is the responsibility of doctors to treat prostate cancer, we as advocates should pay particularly close attention to the severity of symptoms for our Black veteran clients.
You are more likely, in my anecdotal experience, to find more serious complications and residuals of prostate cancer for Black veterans. And the best thing we can do for our Black veteran clients with prostate cancer is to ensure that the VA is not low-balling them on account of inequitable access to medical care in Black communities.
General Formula for VA ratings for prostate cancer.
Thee VA rating for prostate cancer generally works like this.
While the veteran’s prostate cancer is still active – in the official language of the VA rating schedule, this means there is “local reoccurrence or metastasis of a malignant neoplasm of the genitourinary system” – he will be rated 100% (38 C.F.R. §4.115b – DC 7528)
Once the veteran’s prostate cancer goes into remission, the veteran will be rated for voiding dysfunction or renal dysfunction, whichever is predominant.
Are there separately compensable VA ratings for prostate cancer?
The concept of “separate evaluations” that are separately compensable was a big part of the Court’s decision in Bailey v. Wilkie.
So what is a separately compensable VA rating? Specifically, this term commonly refers to the VA’s practice of “rat[ing] a single disability under multiple diagnostic codes without pyramiding.” Basically, this means that in addition to the VA ratings for the voiding and renal dysfunctions after prostate cancer goes into remission, you can get a separate rating for certain residuals that is then combined with the prostate cancer ratings and paid separately. I don’t want to go into depth on the concept of separate ratings in this post, and I will cover them in another post. You can also learn a little more about separate ratings in the Veteran’s Court’s 2019 precedent Morgan v. Wilkie, 31 Vet. App. 162 (2019).
With that background, let’s dive into the Bailey appeal.
In this case, the veteran was diagnosed with prostate cancer in March 2013 and filed a claim to service-connect it a month later. Within a couple months, the VA granted service connection for prostate cancer and awarded a totally disabling 100-percent prostate cancer rating while the veteran was undergoing treatment.
When the veteran’s prostate cancer went into remission about a year later, the VA reduced his rating to 60-percent based on the predominant symptom of ‘voiding dysfunction.’
The veteran objected: he had residual complications of prostate cancer that included frequent bowel movements, diarrhea, swelling of the ankles and feet, and lymphedema of his lower extremities. The VA ignored these complaints and kept the veteran’s prostate cancer rating at 60-percent.
The appeal made it to the BVA where Veterans Law Judge – Judge Keith Allen – affirmed the VA’s decision ignoring the full scope of the veteran’s prostate cancer disability, writing:
“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.”
At the same time that he was appealing the denial of the original VA rating for prostate cancer, the veteran did something really savvy.
He protected his effective date by filing a claim to service connect the lymphedema as secondary to his prostate cancer. That way, he essentially had two claims going at the same time: a claim for an increased rating in his original service connection claim for prostate cancer, and a separate claim to service connect the residuals secondary to the prostate cancer. By doing this, he ensured that if he lost his appeal to the BVA, or if the Veterans Court said that he couldn’t rate his lymphedema as part of his prostate cancer, he had a backup plan already in the works.
The savvy part of this strategy is that he didn’t wait until the BVA appeal was done to file the secondary service connection claim, preserving an earlier effective date. Be careful with this kind of strategy. If done too often or on too many issues at once, it can make the VA claim or appeal very difficult to manage, and it can confuse the VA and end up delaying all of your claims. But done strategically and intentionally, it can really protect a lot of your past-due benefit in the event of a bad VA decision on the original claim.
The strategy paid off in a wonderful way for the veteran: the VA granted service-connection for the lymphedema– the same lymphedema the BVA declined to rate for the veteran’s service-connected his prostate cancer – before the completion of the appeal to rate the lymphedema as part and parcel of the original prostate cancer rating. This had the effect of locking the VA in on the original claim – they could not argue his lymphedema was not part of his prostate cancer, as they found that it was secondary to his prostate cancer.
In any event, the veteran’s appeal seeking to rate lymphedema as part of his original prostate cancer claim worked its way up to the U.S. Court of Appeals for Veterans Claims. At the Veterans Court, the veteran sought a decision from the Court granting him an earlier effective date for the rating of his lymphedema on the grounds that it was secondary to his prostate cancer and should have been rated as a residual or complication in the prior claim.
The Veterans Court weighed in on the scope of VA ratings for prostate cancer.
The Court’s decision conceded that when rating prostate cancer, the VA is initially limited to considering the predominant manifestation (voiding or renal dysfunction) by the implied language of 38 C.F.R. §4.115a (DC 7528).
However, the Court made clear that does not mean that the VA can rate only those two components of prostate cancer.
The VA must still rate any complications of prostate cancer that are reasonably raised by the record.
The hidden dispute in this case – what I think this case it was really about – was whether or not the veteran had to submit a form to separately claim the complications and residuals prostate cancer as secondary to the prostate cancer, or whether the VA should consider and rate the complications and residuals of a veteran’s prostate cancer as part-and-parcel of the original underlying claim.
Over the past decade, the VA has been making a concerted effort not just to force veterans to use standardized forms for their unique claims, but also to restrict its adjudications to the specific words veterans write on those forms. Attorneys for veterans have been pushing back on this concept, to make sure that the already pro-government veterans benefits system does not become even less pro-veteran.
To resolve that question, the majority opinion in the Bailey case interpreted the interplay of several regulations – notably 38 C.F.R. §3.155(d) and 38 C.F.R. §3.160(a) – with the prostate cancer rating.
38 CFR 3.155(d), the Court wrote, states that “[a] complete claim is required for all types of claims.” And 38 C.F.R. §3.160(a) states that a claim is “complete” when it is submitted “on an application form prescribed by the Secretary.”
The Court ultimately concluded that the VA was wrong – complications to a veteran’s prostate cancer should be rated – if they were reasonably raised by the record or the veteran – as part of the original claim for prostate cancer, without the need for more forms from the veteran. The Court wrote:
“[The] VA anticipated and expressly permitted situations like Mr. Bailey’s, where a formal claim concerning the primary disability’s evaluation is pending, but chose to require the filing of a formal claim for secondary service connection when VA was not already processing a properly initiated claim as to the primary disability’s evaluation.”
Judge Pietsch issued a concurring opinion which is interesting in the context of other residuals for conditions other than prostate cancer.
In her concurrence, Judge Pietsch proposed a simpler answer. She focused on “any additional benefits” language in 38 C.F.R. §3.155(d)(2), interpreting that language to mean that “if the Secretary identifies a complication, then he should consider all potential avenues for compensating a veteran for that complication.”
What does all this mean for veterans with prostate cancer claims?
This case was a little complicated because of all the side issues of protecting effective dates, using VA forms, etc. So let’s boil out the important facts for veterans trying to maximize their VA prostate cancer rating.
#1: Tell the VA every complication of your prostate cancer.
In your original claim for prostate cancer, tell the VA all of the complications of your prostate cancer even before it goes into remission.
If you use lay evidence, be sure to focus on the frequency, chronicity and severity of your prostate cancer complications and residuals – and their impact on your earning capacity. It has been my experience over the last 13 years that lay evidence – when done right – is the silver bullet in your VA claim or appeal.
You can bolster your lay evidence with medical evidence showing the complications and residuals of your prostate cancer. This isn’t technically necessary, but it is incredibly helpful if you can back up what you tell the VA with evidence in your medical records.
And, if you decide to use an expert opinion, present your lay evidence, medical evidence and a copy of your VA claims file – being especially sure to include adverse medical opinions – to the expert to ensure that his or her opinion is thorough.
#2: Don’t let the VA cut you out of an earlier effective date for your prostate cancer ratings.
The general rule in a VA claim is that the effective date is the later of the date the claim was filed and the date the entitlement arose.
The VA is fond of saying that because a veteran didn’t tell them about a diagnosed residual or complication, the effective date is the date the veteran told them of the diagnosis.
That’s not how this system works, and I am sure the VA knows it. But the VA still plays games with this sort of thing.
Though I generally like the AMA process and am seeing some real improvements in the VA benefits system – (thanks Obama!…seriously, it was his plan) – this little VA trick has survived from legacy appeals. The trick works like this: give the veteran an effective date that seems plausible, but isn’t all that he or she is entitled to. If the veteran takes the bait, and doesn’t appeal, well the VA just saved some money. If they do appeal, the VA still wins even if they ultimately win the earlier effective date because they’ve managed to save money in the short term since they don’t have to pay the veteran right away.
In any event, don’t let the VA redefine “the date the entitlement arose” to mean “the date you told us about your condition.” The veteran’s entitlement to benefits arises when the first symptoms of a disability cause a functional impairment of your earning capacity, irrespective of any diagnosis.
#3: Use the form now, argue later that you didn’t have to.
The veteran in this case filed a separate claim to service connect lymphedema even while pursuing an appeal of the VA’s failure to rate that lymphedema as part of his prostate cancer claim.
He didn’t have to do that, but as noted above, he did so in the event that he lost his original claim. And when he filed the secondary service connection claim, he used the VA’s official forms to take that issue off the table.
When in doubt, use the VA form and get the rating or service connection issues resolved. Later, if you kept continuously pursuing the original claim and appeal stream, you can argue for an earlier effective date in that original stream on the grounds that the form wasn’t necessary.
This is a tricky strategy for the pro-se veteran to employ, as it can make things really complicated and, if not carefully managed, can make the claim even more complicated. And the strategy is not right every time for every veteran in every claim, so make sure you know what you are doing and why you are doing it in your claim. In fact, as noted in the next tip, you may want to consider having an attorney, an accredited agent, or a really savvy VSO help you with this.
#4: Consider having an attorney take a look at your VA prostate cancer residual.
Now, if you have been following the Veterans Law Blog® for any amount of time, you know that I believe that most veterans can file, prove and (hopefully) win their own VA claims, so long as they are given accurate knowledge about how the system functions. That’s the primary goal of the Veterans Law Blog® – to eradicate myths and educate the pro-se veteran (as well as VSO and veterans attorneys) in the realities of the functioning of the VA benefits system.
Nevertheless, there are times when it makes sense to use an attorney, and the rating of prostate cancer may be one of them.
Accredited VA attorneys see dozens, hundreds and sometimes thousands of VA claims.
So they have seen a wide variety of scenarios play out. They may be aware of residuals and complications of prostate cancer that you may have but may not know or think about. And they likely know which residuals and complications are more likely to have a more substantial impact on your total impairment rating.
I’m not saying you have to hire an attorney – only that it makes sense to talk to an attorney to make sure you aren’t getting lowballed by the VAThe VA’s Duty to Maximize your benefits or to make sure the VA is fulfilling its duty to maximize your VA prostate cancer rating.
When you do consider hiring an attorney, please use the tips and tools in this eBook to help you make the best decision about who to hire in your VA claim.
And, as always, watch out for the VA Claims Poachers – individuals without a VA accreditation taking advantage of the unregulated world of the internet to scam veterans.
Watch this video to learn about one of the most notorious VA Claim Poachers – sadly, he is a veteran preying on other veterans and using strong-arm tactics that I believe border on racketeering to scare veterans into paying him to do little to nothing of value on a VA claim.
(In fact, this particular VA Claims Poacher is fond of stealing content from this site – and other law firm websites – and passing it off as his own).
If you have questions about the VA ratings for prostate cancer, post them in the comments.