Citation Nr: 0103432 Decision Date: 02/05/01 Archive Date: 02/14/01 DOCKET NO. 99-18 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased rating for residuals of the transurethral resection of the prostate with enlargement and history of prostate cancer currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Colorado Department of Social Services ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had active service from May 1943 to May 1946 and from October 1948 and July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that awarded service connection for the residuals of prostate cancer and included these in the 20 percent rating assigned for the service connected transurethral resection of the prostate with enlargement. In that rating decision, service connection was also granted for impotence secondary to the service connected transurethral resection of the prostate with enlargement and history of prostate cancer and assigned a non-compensable evaluation effective June 1997 under the provisions of 38 C.F.R. § 3.114(a)(3) (2000), as well as entitlement to special monthly compensation based on loss of use of a creative organ effective June 1997 under the provisions of 38 C.F.R. § 3.114(a)(3). The record does not contain a notice of disagreement as to the rating assigned for impotence or the effective date assigned for impotence or special monthly compensation, and thus, such matters are not in appellate status at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board observes that the March 1999 notice of disagreement for a separate issue contained a request for an increased (compensable) rating for tinnitus. In May 1999, the RO issued a rating decision denying a compensable evaluation as well as a statement of the case. The Board acknowledges that the statement of the case was issued in the absence of a properly filed notice of disagreement. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.201, 20.302(a) (2000). By rating decision in December 1999, the RO awarded a 10 percent rating for tinnitus effective June 1999 pursuant to the change in the legislation. See 38 C.F.R. § 4.87; 64 Fed. Reg. 25210 (May 11, 1999). That rating decision also informed the veteran of the aforementioned procedural error. He was instructed to file a notice of disagreement and substantive appeal by May 28, 2000 (one year from the notification letter of May 28, 1999) if he disagreed with the December 1999 rating decision. As of this date, the veteran has not filed a notice of disagreement to that rating decision. See In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (Absent a notice of disagreement, a statement of the case, and a substantive appeal, the Board has no authority to proceed to a decision). Accordingly, this issue is not before the Board for appellate consideration. FINDING OF FACT Residuals of the transurethral resection of the prostate with enlargement and history of prostate cancer are manifested by occasional dribbling during the daytime, some incontinence at night, postvoid residual and a diminished urine stream. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for residuals of the transurethral resection of the prostate with enlargement and a history of prostate cancer have not been met. 38 U.S.C.A. § 1155 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7527 (2000). REASONS AND BASES FOR FINDING AND CONCLUSION In July 1998, the veteran sought an increased rating alleging that his prostate condition had worsened to a greater degree of severity, that he had prostate cancer, and that he had undergone radiation treatment. In accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the medical records and all other evidence of record pertaining to the history of the veteran's transurethral resection of the prostate and residuals of prostate cancer. The Board has found nothing in the historical record that would lead to a conclusion that the current evidence on file is inadequate for rating purposes. In that regard, no further assistance to the veteran is required in order to comply with the duty to assist as mandated by Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, ___ (2000); Veterans Benefits and Health Care Improvement Act of 2000, Pub. L. No. 106-419, § 104 (2000); 38 C.F.R. §§ 4.1, 4.2 (2000). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity. Separate diagnostic codes (DC) identify the various disabilities. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2000). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2000). When after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability; such doubt shall be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2000). All relevant and adequate medical data of record that falls within the scope of the increased rating claim should be addressed. See Powell v. West, 13 Vet. App. 31, 35 (1999). The veteran's service connected prostate disability is rated in accordance with sections 4.115a and 4.115b, dysfunctions and diagnoses of the genitourinary system. Diagnostic code 7527 provides that prostate gland injuries, infections, hypertrophy, and postoperative residuals should be rated as voiding dysfunction or urinary tract infection under 38 C.F.R. § 4.115a, whichever is predominant. See 38 C.F.R. § 4.115b. Section 4.115a provides that diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decisionmaker to these specific areas dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. A voiding dysfunction should be rated as urine leakage, frequency, or obstructed voiding. A 20 percent rating evaluation is warranted for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating evaluation is warranted where the symptoms require the wearing of absorbent materials which must be changed 2 to 4 times per day. See 38 C.F.R. § 4.115a. A 30 percent evaluation is warranted for urinary tract infection with recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year, and/or requiring continuous intensive management. With long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management, a 10 percent evaluation is warranted. 38 C.F.R. § 4.115a. A 20 percent rating evaluation is warranted for urinary frequency manifested by a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating evaluation is warranted for urinary frequency manifested by a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. Id. A 30 percent rating evaluation is warranted for obstructed voiding that is manifested by urinary retention requiring intermittent or continuous catheterization. Id. A 30 percent rating evaluation is warranted for recurrent urinary tract infection for symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id. In September 1969, service connection was awarded for transurethral resection of the prostate with enlargement and assigned a 20 percent rating evaluation effective from August 1, 1969. See 38 C.F.R. § 3.400(b)(ii)(2) (2000). In retrospect, a subsequent VA examination in August 1970 reflected a lengthy history of vesical neck obstructive symptoms until 1965 when the veteran underwent transurethral resection. Postoperatively, he did well until approximately two years ago when symptoms of mild and benign bladder outlet obstruction again developed, progressing gradually to the present. He has nocturia now of one time only, and his stream has somewhat diminished in size and force from the first few years postoperative. There were no systemic symptoms, nor was there any history of a hematuria, urinary tract infection, or bone pain. The examiner noted that one disconcerting symptom was that the veteran tended to awaken from sleep nightly with penile erection which was alleviated only by emptying his bladder of a small amount of urine. There was no tendency toward impotence or premature ejaculation. The veteran continued to ejaculate retrograde into the bladder. The physical examination was unremarkable throughout. The impression was status post transurethral resection of the vesical neck for repair of a congenital medial bar formation of the posterior vesical neck, as well as a possible recurrence of fibromuscular tissue at the vesical neck, postsurgical scarring, or incipient benign prostatic hypertrophy with obstruction. The September 1970 rating decision confirmed the 20 percent rate and noted "static" under future date controls. The 20 percent rate has been in effect since that time. In brief, private medical records dated from September 1987 to January 1999 reflect complaints of increasing problems with impotence in December 1987 and August 1990; an abdominal mass and proteinuria in May 1995; a large ventral hernia, an enlarged prostate, and elevated PSA (prostate specific antigen) in May 1996; a diagnosis of prostate cancer in July and August 1996; and no significant nocturia or dysuria in April 1997. Other treatment records reflect complaints of urinary incontinence and increased nocturia in October 1997 diagnosed as probable prostatitis and treated with Septra DS for 3 weeks and again in November 1997 with Macrobid for 2 weeks. The veteran manifested no symptoms of incontinence or nocturia and had a negative urinalysis in December 1997. In June 1998, the prostate was small and somewhat hard related to radiation therapy with no tenderness. A January 1999 entry reflects an elevated PSA that had been normal since July 1997. The October 1998 Agent Orange examination reflects by history that the veteran had a recurrence of prostatic symptoms in approximately 1975 and continued to have some difficulty initiating his urine and maintaining a good stream since that time. In 1996, the veteran was diagnosed with prostate cancer. The report reflects that the veteran did not have known metastatic disease and that he had been treated with external radiation therapy. The veteran reported occasional dribbling at night and sometimes during the day, but not severe enough for him to use pads, which has been present since the external radiation in 1996. He has a poor stream of urine and no nocturia. The veteran reported feeling some postvoid residual. On examination, the testes were normal. There was no hernia. The prostate was 4+ and smooth without nodules. The veteran was not wearing a pad. There was no staining of the underwear. In relevant part, the diagnoses were benign prostatic hypertrophy, status post transurethral resection of the prostate; and history of prostate cancer with no evidence of metastatic disease or recurrent disease, status post external beam radiation with residual impotence. After a thorough review of the evidence, the Board finds that the symptoms attributed to the residuals of the transurethral resection of the prostate gland are essentially the same as those documented in 1970 but for the urinary leakage and impotence that have been constant since the external radiation for prostate cancer. The Board acknowledges the fact that the veteran has postvoid residuals and diminished urine stream. These symptoms would warrant a 10 percent rating evaluation. Albeit the veteran was treated for persistent mild prostatitis from October to November 1997, the veteran had difficulty with the antibiotic treatment requiring a change in medications. In examining the claim in the light most favorable to the veteran, the Board determines that the most problematic symptom of this disability would be the urinary leakage even though the veteran, himself, reported that the occasional dribbling at night and during the day was not severe enough for him to use pads. Therefore, the Board determines that the veteran's disability picture more nearly approximates a 20 percent rating evaluation for urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. See 38 C.F.R. §§ 4.7, 4.115a, 4.115b, DC 7527. As the veteran's voiding dysfunction is not characteristic of continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day or a daytime voiding interval less than one hour, or; awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization, or; recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and /or requiring continuous intensive management, a rating evaluation higher than 20 percent is not warranted. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7527. In addition, the most recent evidence of record demonstrates that the veteran does not manifest any new growths of the genitourinary system, malignant or benign, to warrant a rating evaluation higher than 20 percent. See 38 C.F.R. § 4.115b, DCs 7528 and 7529 (2000). At this juncture, the Board addresses the veteran's contention that a higher rating is warranted for the residuals of the transurethral resection of the prostate due to his diagnosis of prostate cancer. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the Court held that it is possible for a veteran to have separate and distinct manifestations from the same disease permitting two different disability ratings. See 38 C.F.R. § 4.25(b) (2000). In this case, the critical element is that the symptomatology for the transurethral resection of the prostate gland with enlargement is not dissimilar to the symptomatology associated with the residuals of the prostate cancer. See 38 C.F.R. § 4.14 (2000). Therefore, the veteran is not entitled to a separate rating for the residuals of prostate cancer. In reviewing this case, the Board has considered whether additional benefits are warranted under any of the provisions of Parts 3 and 4. See 38 C.F.R. § 3.321(b)(1) (2000). As to the disability picture presented in this case, the Board cannot conclude that the disability picture is so unusual or exceptional, with such related factors as frequent hospitalization or marked interference with employment, as to prevent the use of the regular rating criteria. The Board acknowledges the veteran's contentions of increased symptoms related to the residuals of prostate cancer to include impotence. In that regard, the Board stresses that the genitourinary symptoms complained of are not so exceptional as to preclude the use of the regular rating criteria to include compensation under special provisions for impotence. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability evaluation itself is recognition that industrial capabilities are impaired). In the absence of an exceptional or unusual disability picture marked by frequent hospitalizations for the disability, the Board finds that the criteria for submission for the assignment of an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER A rating higher than 20 percent for residuals of the transurethral resection of the prostate with enlargement and residuals of prostate cancer is denied. James R. Siegel Acting Member, Board of Veterans' Appeals