Citation Nr: 0306809 Decision Date: 04/09/03 Archive Date: 04/14/03 DOCKET NO. 98-15 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 20 percent for prostate cancer due to Agent Orange exposure for the period from December 1, 1994, to November 11, 1997. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Howell, Counsel INTRODUCTION The veteran served on active duty from March 1946 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The veteran's original claim for compensation for prostate cancer was received by VA on March 8, 1994. The RO denied this claim in August 1994. However, by a decision dated in March 1998, the RO established service connection for prostate cancer pursuant to a change in VA regulation effective November 7, 1996, which added prostate cancer to the list of diseases presumed to be due to Agent Orange Exposure. See 61 Fed. Reg. 57,586 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309(e) (1996)). The following year, the District Court issued a final judgment which provided that, if VA issued new regulations regarding herbicide-exposure claims that provided service connection for diseases other than chloracne, VA was required to readjudicate certain previously denied claims. See Nehmer v. United States Veterans Administration (Nehmer II), 32 F. Supp. 2d 1175, 1176 (N.D. Cal. 1999). The Nehmer judgment further provided that the effective date for an award resulting from such readjudication would be the date the claim was filed or the date the claimant became disabled or death occurred, whichever is later. Accordingly, by a decision dated in February 2002, the RO changed the effective date for the grant of service connection for the veteran's prostate cancer from November 7, 1996, to March 8, 1994, the date that he filed his original claim. The RO assigned a 100 percent disability rating for prostate cancer effective March 8, 1994. The rating was reduced to 20 percent effective December 1, 1994, (six months after completion of radiation treatment). The rating was then again increased to 100 percent effective November 1997 (the date of recurrence of prostate cancer). The veteran asserts that he is entitled to a 100 percent disability rating for the entire period. A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein at issue, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. As is evident, the RO has complied with the guidance provided by the Veterans Claims Court in Fenderson and has established staged ratings for discrete intervals during the pendency of the appeal. The veteran testified at a hearing before the undersigned member of the Board in Washington, D.C., in July 2002. A transcript of the hearing is of record. On October 4, 2002, the Board returned the claims folder to the RO in connection with a "Nehmer Review." The RO then sent the claims folder to the Office of General Counsel, in Washington, D.C. The claims folder was returned to the Board in February 2003. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The veteran was diagnosed with prostate cancer in 1993 and filed an initial claim for VA compensation for prostate cancer which was received by VA on March 8, 1994. 3. The veteran began radiation treatment for the prostate cancer on March 4, 1994, and the treatment was completed on May 4, 1994. 4. Service connection was granted for prostate cancer and he ultimately received a 100 percent disability effective from March 8, 1994, until December 1, 1994 (six months after completion of radiation treatment). Thereafter, he was assigned a 20 percent disability rating for prostate cancer until November 11, 1997, when the 100 percent rating was restored based on medical evidence indicating that the prostate cancer had recurred. 5. Treatment records dated from December 1994 to November 1997 show no medical evidence of the need for wearing absorbent materials, daytime voiding intervals of less than one hour, voiding five or more times per night, or urinary retention. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for prostate cancer for the period from December 1, 1994, to November 11, 1997, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2002). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2001). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2002). Diagnostic Code 7528 (malignant neoplasms of the genitourinary system) provides for a 100 disability rating following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures. 38 C.F.R. § 4.115b, DC 7528 (2002). Thereafter, a mandatory six-month 100 percent rating will be assigned following surgery. The 100 percent rating will continue until a mandatory VA examination is conducted at the expiration of a six month period. Any change based upon that examination is subjected to the provisions of 38 C.F.R. § 3.105(e) (reduction in evaluation). If there is no local reoccurrence or metastasis, the adjudication officer is directed to rate the disability on the residuals of a voiding dysfunction or renal dysfunction, whichever is predominant. In this regard, the Board notes that the medical evidence associated with the claims file at the time of treatment does not reflect that the veteran experienced renal colic, bladder stones, or acute nephritis; accordingly, the Board concludes that the veteran's voiding dysfunction, rather than renal dysfunction, was the predominant post-operative disorder. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. With a voiding dysfunction characterized by continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating will be assigned with the wearing of absorbent materials which must be changed less than 2 times per day. The wearing of absorbent materials which must be changed 2 to 4 times per day will be assigned a 40 percent rating. A 60 percent rating, the highest available, will be assigned with the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. See 38 C.F.R. § 4.115a. Urinary frequency with daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent evaluation. A 20 percent evaluation requires daytime voiding intervals between one and two hours or awakening to void three to four times per night. Finally, daytime voiding intervals less than one hour or awakening to void five or more time per night warrants a 40 percent evaluation. See 38 C.F.R. § 4.115a. Obstructive voiding will be assigned a noncompensable evaluation with obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year. A 10 percent evaluation will be assigned with marked obstructive symptomatology with additional symptoms. Urinary retention requiring intermittent or continuous catheterization will be assigned a 30 percent disability rating, the highest available under obstructive voiding. See 38 C.F.R. § 4.115a. Finally, urinary tract infections necessitating long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent evaluation. A 30 percent evaluation requires recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requires continuous intensive management, the highest rating available for urinary tract infections. See 38 C.F.R. § 4.115a. Factual Background. Medical records from the New Hanover Radiation Oncology Center reflect that the veteran was initially evaluated in February 1994 for adenocarcinoma of the prostate, moderately differentiated, Gleason's grade 3+4 on the right, and poorly differentiated Gleason's grade 4+5 on the left. Radiation was recommended. Treatment started on March 10, 1994, and was completed on May 4, 1994. He tolerated treatment quite well and was given Pyridium because of dysuria. The veteran was accorded an examination for disability evaluation purposes by VA on May 31, 1994. The veteran presented complaints of occasional soreness on urination. It was noted that he had received radiation therapy for cancer of the prostate and that there was no evidence of metastases. Examination revealed a firm, smooth prostate, which was nontender but felt slightly enlarged. Medical records from the New Hanover Radiation Oncology Center reflect that the veteran was seen for follow-up examination in July 1994. The veteran was feeling well and there was no history of difficulty urinating and no history of rectal bleeding. Physical examination revealed no supraclavicular or axillary adenopathy. Rectal examination revealed the prostate to have decreased in size greatly. The previous induration had also decreased. The impression was that the veteran had improved. The veteran was asked to return in six months. Periodic follow-up notes from the New Hanover Radiation Oncology Center dated from January 1995 to May 1997, reflect that the veteran was "doing well." He reported nocturia 3 to 4 times. A PSA in July 1995 was 2.7. When seen in December 1995, it was noted that he was not having difficulty urinating and that rectal examination revealed the prostate to feel benign. In May 1997 it was reported that he apparently underwent cystoscopy for some urinary bleeding, without lesions noted. In November 1997 it was reported that there was no history of rectal or urinary bleeding. In May 1998, it was reported that the veteran noted nocturia 2 to 3 times nightly. A PSA in November 1997 was 8.3 and another PSA in May 1998 was 13.5. In November 1998 the following was reported: "Rectal examination revealed the prostate to feel fairly benign; however, patient does have recurrent disease - it may be metastatic disease." Analysis. As noted above, the veteran filed his original claim for prostate cancer in March 1994, which was denied by the RO. In June 1996, he sought to reopen the claim, which the RO granted by rating decision dated in March 1998, and assigned a noncompensable rating effective from November 7, 1996, the date of the new law regarding presumptive service for prostate cancer. In August 1999, he filed a claim for an increased rating, which was granted by rating decision dated in February 2000, and a 100 percent rating was assigned effective to August 1999 (the date he filed the claim to reopen) as his cancer (originally diagnosed in 1993) had recurred. In June 2000, the veteran initially indicated his disagreement with the assignment of a 100 percent disability rating effective to August 1999 and maintained that he should have been granted a 100 percent rating since November 1996 (the date of the new law). Subsequently, the 100 percent disability rating was assigned effective to March 1994, the date the veteran filed his initial claim. Nehmer, supra. Thereafter a 20 percent rating was assigned effective December 1994 (six months after completion of radiation treatment), but was ultimately again increased to 100 percent effective November 1997 (due to recurrence). As an initial matter, given the complex procedural posture of this case due to multiple changes in the law regarding presumptive service connection for prostate cancer due to Agent Orange exposure, the Board finds that the RO complied, to the extent possible, with the provisions of DC 7528 in establishing a 20 percent disability rating for the period immediately following the six month mandatory 100 percent rating. To that end, the Board finds that the RO properly reevaluated the veteran's service-connected prostate cancer and reduced the level of benefit at the most reasonable time available. Although the veteran was not provided with the post-treatment mandatory VA examination in December 1994, it was because the law at that time did not provide for a grant of service connection for the veteran's prostate cancer. By the time the law was changed to permit the grant of service connection and to allow an effective date of March 1994 (the date of the original claim), an examination would not have been relevant in establishing the level of disability that was present as of December 1994. The RO utilized the medical evidence created in 1994 and thereafter to determine that a rating in excess of 20 percent was not warranted as of December 1, 1994. Therefore, the Board determines that the RO's determination that a rating in excess of 20 percent was not warranted after the six-month period following completion of radiation treatment was in accordance with the provisions of DC 7528. Section 3.105(e) states that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, the reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating decision expires. See 38 U.S.C.A. § 5112(b)(6). In VAOPGCPREC 71-91, VA General Counsel held that section 3.105(e) does not apply where there is no reduction in the amount of compensation payable. Thus, section 3.105(e) is applicable "only when two factors are present: (1) there is a reduction in evaluation of a service-connected disability or employability status; and (2) the lower evaluation would result in a reduction and discontinuance of compensation payments currently being made." VAOPGCPREC 71-91 (see also VAOPGCPREC 29-97 wherein General Counsel again held that the provisions of section 3.105(e) are inapplicable where there is no reduction of a service-connected disability rating which results in reduction or discontinuance of compensation payments currently being made). Inasmuch as the February 2002 rating decision which established service connection for prostate cancer retroactive to March 8, 1994, and assigned a 100 percent rating from this date to December 1, 1994, when the rating was reduced to 20 percent, did not result in reduction or discontinuance of compensation payments currently being made, the provisions of section 3.105(e) is inapplicable. At the time of the February 2002 rating, the effective date for the grant of service connection for prostate cancer had been November 7, 1996, and the prostate cancer had been rated 0 percent disabling from this date to August 1999, when the rating was increased to 100 percent. Having determined that the RO substantially complied with the provisions of DC 7528 in assigning a post-cancer treatment rating based on voiding dysfunction, the next issue is whether the veteran was entitled to a rating in excess of 20 percent between December 1994 and November 1997. He contends, in essence, that the cancer was never actually in remission but rather laid dormant for several years until its recurrence in November 1997. At a hearing before the Board, he maintained that he underwent radiation treatments in 1994 and lost control of his urine flow. He indicated that he had needed pads for urine leakage since 1996 and changed them three times a day. He reported that he had problems with leaking since his radiation treatments in 1994, which were then worse. After a review of the claims file, the Board finds that the medical evidence dated from December 1994 to November 1997 does not support a higher than 20 percent rating. Specifically, in periodic follow-up notes dated from January 1995 to May 1997, a Radiation Oncologist reported that the veteran was "doing well," and he was instructed to return to his regular physician approximately every six months. There was no evidence of on-going cancer, recurrence of cancer, or problems with voiding. Further, follow-up notes from his private physician dated from August 1995 to May 1997 reflect no evidence which would tend to support entitlement to a higher than 20 percent rating. Specifically, in an August 1995 note, the veteran denied "irritative and obstructive voiding symptoms" or gross hematuria. His urinalysis was clear and the dipstick test was negative. Similarly, in notes dated October 1995, February 1996, June 1996, November 1996, and May 1997, the private treating physician specifically reported that there was no evidence of "irritative or obstructive symptoms" at urination. The February 1996 note also indicated that the veteran reported nocturia two or three times, which the treating physician reported was "stable." In this case, there is no evidence associated with the claims file that the veteran's service-connected prostate cancer warranted a higher rating until November 1997, the first indication that his cancer had recurred. Although the veteran now contends that his cancer had been active all along, the Board places significant probative value on the medical evidence showing no evidence of irritative or obstructive urination for many months during the period from December 1994 to November 1997. This is persuasive evidence that the veteran was not experiencing problems with urine leakage, frequency, or obstructed voiding. In addition, although a February 1996 note indicated that the veteran was voiding 2-3 times per night, urinary frequency 3- 4 times per night warrants only a 20 percent disability rating. A 40 percent rating requires voiding 5 or more times per night. Therefore, there is no basis on which to find that a rating higher than 20 percent was warranted from December 1994 to November 1997. Finally, in denying the veteran's claim, the Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law also eliminated the concept of well-groundedness and is applicable to all claims filed on or after the date of enactment or those filed before the date of enactment but not yet final as of that date. 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." In this case, VA's duties have been fulfilled to the extent possible with regard to the issue decided in this decision. First, VA must now notify the veteran of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim, and indicating which portion of that information and evidence, if any, is to be provided by the veteran and which portion, if any, the Secretary will attempt to obtain on behalf of the veteran. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). By virtue of the information contained in the March 1998, February 2000, and February 2002 rating decisions, the July 2000 statement of the case, and the December 2001 and February 2002 supplemental statements of the case issued during the pendency of the appeal, the veteran and his representative were told that there was no evidence showing that he was entitled to a higher rating. Further, the RO notified him by letter dated in April 2001 of his due process rights under the VCAA and that he needed to submit evidence in support of his claim, such as doctor's records, medical diagnoses, and medical opinions, and that VA would assist him in obtaining those records. He was told what evidence had been considered and what he needed to do to help with the claim. In January 2002, he responded that he had no more evidence to submit. Next, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). To that end, it appears that all medical records identified by the veteran have been associated with the claims file, including VA outpatient clinical records, private treatment records, and hospital notes. In addition, the veteran asked and was provided with an opportunity to present testimony before the Board in July 2002. Further, his claim was the subject of a Nehmer review. The Board notes that he was notified of the review by letter dated in February 2002 and an effective date to the date of his original claim was established. As such, the Board finds that the record as it stands is sufficient to decide the claim, that no additional development is needed, and that the mandates of the VCAA have been satisfied. ORDER Entitlement to a rating in excess of 20 percent for prostate cancer for the period from December 1, 1994, to November 11, 1997, is denied. Gary L. Gick Veterans Law Judge Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.