Wednesday, February 26, 2014

Tatum v. Shinseki

Tatum v. Shinseki, docket no. 12-1682 (Vet.App. Feb. 26, 2014)
38 C.F.R. § 4.115b, DIAGNOSTIC CODE (DC) 7528
A 100% disability rating for prostate cancer is warranted for six months “[f]ollowing the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure…” 38 C.F.R. § 4.115b, DC 7528. The date of “cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure” refers to the date of final treatment for cancer – and not for treatment of residuals of cancer or residuals of cancer treatment.

The veteran underwent treatment for prostate cancer in October and November 2001. A year later, he underwent subsequent procedures to insert a Foley catheter. The Board distinguished between the treatment for cancer that ended in November 2001 and the treatment for residuals (Foley catheter) that ended in December 2002 – and found that, for purposes of the regulation, his treatment ceased in November 2001. The Court agreed, but also determined that the six-month period of entitlement to a 100% disability rating went through May 2002, as opposed to April 2002, which is what had been awarded.

Because the Court remanded this last issue, the Court declined to address the appellant’s remaining arguments regarding VA’s failure to comply with its duty to assist. However, the Court noted that during oral argument, the Secretary asserted that notice of missing records did not trigger VA’s duty to assist. The Court cautioned VA that “when a claimant informs the Secretary that records appear to be missing, the Secretary should, at a minimum, respond to the claimant.” *11.

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