Bailey v. Wilkie

Herman O. Bailey (plaintiff) filed a claim for service-connected disability for prostate cancer. A Department of Veterans Affairs (VA) (defendant) regional office (RO) granted Bailey a total disability rating. After radiation therapy, Bailey’s cancer went into remission. A VA examiner proposed that Bailey’s disability be reduced but that Bailey be assigned a 60 percent due to ongoing urinary symptoms. Bailey objected to the reduction and reported other ongoing symptoms, including diarrhea and swelling in the ankles and feet. Bailey was subsequently diagnosed with lymphedema in the lower extremities. A VA examination in March 2016 suggested that further tests were necessary to determine whether the diarrhea and lymphedema had been caused by the cancer radiation treatments. The RO implemented the reduction to 60 percent, and Bailey filed a notice of disagreement. Bailey then filed a second, separate claim, this time for total disability based on individual unemployability (TDIU) due to prostate cancer and secondary lymphedema. The Board of Veterans’ Appeals (the board) denied Bailey’s appeal of the reduction to 60 percent. Later, the RO granted Bailey’s second TDIU claim with an effective date of Bailey’s filing of the second claim. Bailey objected, requesting an earlier effective date. The RO denied the request on the ground that the TDIU for lymphedema had not been submitted as a claim until that date. Bailey appealed to the board, and the board denied the claim. Bailey appealed.