Our office deals with many cases involving prostate cancer, especially those that are presumptively service connected due to exposure to Agent Orange. Often, the VA fails to address the multitude of issues that a Veteran is experiencing due to his prostate cancer. Many times, the VA will only rate for a voiding or renal dysfunction, while ignoring residuals or requiring a separate filed claim for those residuals.
The U.S. Court of Appeals for Veterans Claims (“CAVC”) addressed these issues recently in the precedential ruling Bailey v. Wilkie, __ Vet.App. __, No. 19-2661 (January 6, 2021). The Court held that only a single evaluation can be assigned under DC 7528 for residuals of prostate cancer based on voiding or renal dysfunction, but other residuals may be compensated as secondary to prostate cancer and a formal claim is not necessary. The Court stated that 38 C.F.R. § 3.155(d)(2) states in pertinent part that VA must “consider all lay and medical evidence . . . to adjudicate entitlement to the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition. . . .” This means that the “VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.” Basically, if the residuals are reasonably raised during the process of examinations, during the claim or during the adjudication process, the VA must determine if that residual should be service connected as secondary to prostate cancer. This is a great step in the right direction for Veterans who are suffering from the effects of prostate cancer and have been fighting for a proper evaluation from the VA.
Gardberg and Kemmerly is open for calls and online assistance and will continue to help our Veterans in any way possible. If you have a claim for disability and need assistance, please call our office and speak with one of our qualified Veterans’ Disability attorneys. Gardberg and Kemmerly is committed to helping injured and disabled Veterans obtain the benefits they deserve. If you need help with a disability claim, call the office at 251-343-1111 or 1-800-332-1529 for a free consultation. Gardberg and Kemmerly is proud to serve Veterans across the country from our home office in Mobile, Alabama.