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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