Willie E. Tatum v. Eric K. Shinseki
24 Vet. App. 139
Vet. App.2010Background
- Tatum, a veteran, appeals a Board denial of an initial 10% rating for residuals of radical prostatectomy (prostate cancer).
- The issue centers on the application of 38 C.F.R. § 4.115b, DC 7528 for malignant genitourinary neoplasms and required notices/examinations.
- A September 2002 rating decision assigned 100% from Feb 28, 2002 to May 1, 2002 and 0% thereafter for residuals; an SOC in Jan 2004 continued 10% for residuals.
- The Board’s July 25, 2008 decision denied an increased rating and did not address whether DC 7528 requirements (six-month convalescence, mandatory VA exam, and § 3.105(e) notice) were satisfied.
- The court found errors in the Board’s analysis and remanded for further consideration of (1) cessation date of treatment and six-month period, (2) possible local recurrence or metastasis, and (3) adequacy of the Board’s rationale.
- Final disposition: Board’s decision set aside and remanded for further adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DC 7528 requires § 3.105(e) notice before reduction. | Tatum contends reduction without § 3.105(e) notice voids the action. | The reduction occurred during a staged rating, and § 3.105(e) applies only to compensation reductions currently being paid. | No § 3.105(e) notice required because no current compensation was being paid at the time of the staged rating. |
| Whether the six-month convalescent period and mandatory VA exam under DC 7528 were properly applied. | DC 7528 mandates a 100% rating for six months after cessation of treatment, with a mandatory exam. | The Board did not adequately address cessation date or recurrence; the rating actions followed DC 7528, but the Board failed to adjudicate all issues. | Remand required to address cessation date and possible recurrence under DC 7528. |
| Whether the Board failed to address all reasonably raised issues regarding DC 7528. | Record raises ongoing concerns about higher rating and applicability of DC 7528. | Board reviewed medical evidence but did not fully analyze all DC 7528 considerations. | Remand appropriate to consider all DC 7528 issues and provide adequate reasons or bases. |
Key Cases Cited
- Lane v. Principi, 339 F.3d 1331 (Fed. Cir. 2003) (statutory/regulatory interpretation deference to agency when reasonable)
- Kent v. Principi, 389 F.3d 1380 (Fed. Cir. 2004) (interpretation of regulations; plain meaning controls when no ambiguity)
- Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (plain language controls; deference to agency interpretation if not inconsistent)
- Lopez v. Davis, 531 U.S. 230 (Sup. Ct. 2001) (mandatory terms (shall) impose obligations; convalescence evaluations considered in context)
- Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (remand for Board to address facts; staged ratings and DCs tied to examinations)