Citation Nr: 0522396 Decision Date: 08/17/05 Archive Date: 08/25/05 DOCKET NO. 04-11 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to an initial evaluation greater than 30 percent for bladder cancer, status post radical cystectomy with urinary diversion, from November 1, 1999. 2. Entitlement to an initial compensable rating for service-connected erectile dysfunction, with penile implant, and left epidydymectomy. 3. Entitlement to an initial compensable rating for service-connected ventral hernia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The veteran served on active duty from June 1978 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which implemented a May 2003 appellate decision of the Board and granted the veteran service connection and a 30 percent evaluation for bladder cancer, status post radical cystectomy with urinary diversion, effective from November 1, 1999 (the date of his original claim for VA compensation for this disability). The issues addressed in the REMAND portion of the decision below regarding entitlement to initial compensable evaluations effective from November 1, 1999, for service- connected erectile dysfunction with penile implant and left epididymectomy and ventral hernia are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the period from November 1, 1999 to January 5, 2005, the veteran's service-connected bladder cancer, status post radical cystectomy with urinary diversion, was manifested by obstructed voiding manifested by urinary retention requiring catheterization through a stoma to pass urine. 2. For the period commencing on January 6, 2005, onwards, the veteran's service-connected bladder cancer, status post radical cystectomy with urinary diversion, was manifested by post-surgical urinary diversion requiring the use of a catheter and wearing absorbent pads that require changing more than four times per day. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation greater than 30 percent for bladder cancer, status post radical cystectomy with urinary diversion, for the period from November 1, 1999 to January 5, 2005, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2004). 2. The criteria for a 60 percent evaluation for bladder cancer, status post radical cystectomy with urinary diversion, for the period commencing on January 6, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.115a, 4.115b, Diagnostic Code 7528 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veterans Claims Assistance Act of 2000, implemented in 38 U.S.C.A. §§ 5103, 5103A (West 2002), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004)). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The provisions of the VCAA and the implementing regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2001) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). The Board notes that the RO has provided the veteran with express notice of the provisions of the VCAA as it relates to the issue of rating his service-connected bladder cancer, status post radical cystectomy with urinary diversion, in correspondence dated in September 2003 and January 2004, in which it provided the veteran with an explanation of how VA would assist him in obtaining necessary information and evidence. The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His medical records pertaining to his claim for Social Security Administration disability benefits and his treatment for bladder cancer for the period from 1983 to 2005 have been obtained and associated with the evidence. He has also been provided with a VA examination that addressed the increased rating claim on appeal. Finally, he has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. (See Quartuccio v. Principi, 16 Vet. App. 183 (2002).) As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating the claim. For these reasons, further development is not necessary to meet the requirements of 38 U.S.C.A. §§ 5103 and 5103A. Factual Background The history of the veteran's service-connected bladder cancer shows that in June 1983 a large papillary carcinoma of his urinary bladder was discovered. The prognosis at the time was that the bladder cancer would be terminal without radical therapy. In August 1983 he underwent a total cystectomy and ileal conduit procedure. Additional procedures included a left urethral implant with subsequent conversion to an Indiana pouch in 1992, several stoma revision procedures, a penile implant in 1984 and an incisional hernia repair in 1996. (The issues regarding the level of impairment associated with the penile implant and the hernia repair are not presently in appellate status.) The veteran also experienced chronic urinary tract infections. The pertinent medical records addressing the degree of impairment imposed by the bladder cancer, status post radical cystectomy with urinary diversion, for the period commencing on November 1, 1999, includes VA medical treatment reports dated from 2002 - 2005. These show that the veteran's bladder cancer residuals were primarily manifested by his use of a catheter to pass urine via a stoma. VA examination of April 28, 2004, shows that he encountered some urinary leakage and avoided wearing light-colored clothing so that the leak would not be as visible, but he did not wear a pad. The examiner observed little leakage. The records do not show any objective indication of recurring leakage problems until a VA treatment report dated January 6, 2005, which shows that the veteran was prescribed abdominal absorbent pads to catch urinary leakage and was instructed to change the pad once every three hours. Analysis The Board notes that this case is based on an appeal of a May 2003 RO decision, which had granted the veteran service connection and a 30 percent evaluation for bladder cancer, status post radical cystectomy with urinary diversion, effective from November 1, 1999, the date on which he filed his claim for service connection for this specific disability. Consideration must therefore be given regarding whether the case warrants the assignment of separate ratings for his service-connected genitourinary disability for separate periods of time, from November 1, 1999, to the present, based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). As the veteran seeks an initial evaluation greater than 30 percent, the Board will only discuss the pertinent rating criteria that address the requirements for assignment of a rating at or above 30 percent. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). Separate diagnostic codes identify the various disabilities. Where 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. 38 C.F.R. § 4.7 (2004). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2004). Malignant neoplasms of the genitourinary system such as the veteran's bladder cancer are rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. For inactive cancer following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, if there has been no local reoccurrence or metastasis, the bladder cancer is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. As will be discussed in the evidence below, the veteran's bladder cancer, status post radical cystectomy with urinary diversion, is primarily manifested by a voiding dysfunction. The applicable criteria to rate this disability is contained in 38 C.F.R. § 4.115a: Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The following section provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decisionmaker to these specific areas [of] dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. For rating impairment due to voiding dysfunction, rate the particular condition as urine leakage, frequency, or obstructed voiding. When the evidence demonstrates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, assignment of a 60 percent evaluation is warranted. When the evidence demonstrates 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, assignment of a 40 percent evaluation is warranted. For obstructed voiding manifested by urinary retention requiring intermittent or continuous catheterization, assignment of a 30 percent evaluation is warranted. 38 C.F.R. § 4.115a Applying the facts of the case to the applicable rating criteria, the Board finds that the veteran's bladder cancer, status post radical cystectomy with urinary diversion, was manifested by his need to use a catheter to pass urine through a surgically created stoma for the period from November 1, 1999 to January 5, 2005. During this period, the evidence does not objectively demonstrate that he experienced urinary leakage problems associated with his stoma and catheter that required with absorbent patches to staunch the uncontrolled excess flow. As noted on VA examination in April 2004, the examining physician detected little leakage from the veteran's stoma. Therefore, the criteria for an evaluation greater than 30 percent on the basis of urine leakage was not met during this period. The VA treatment report of January 6, 2005, however, objectively demonstrates that the veteran's urinary diversion was manifested by urine leakage of such severity that he needed to be prescribed absorbent pads to control his symptoms, with instructions to change his pads once every three hours. Although it is not clear from the record whether or not the pads needed to be changed during daylight waking periods only, or throughout the entire course of the 24-hour day, the Board will confer the benefit of the doubt to the veteran and interpret the evidence in the most favorable manner for his claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that it is factually ascertainable that, as of January 6, 2005, the veteran requires the use of absorbent pads to control urinary leakage associated with his service-connected bladder cancer, status post radical cystectomy with urinary diversion, and that he must change these pads once every three hours, which translates to eight times per 24-hour day. This meets the criteria for a 60 percent evaluation, effective January 6, 2005, for bladder cancer, status post radical cystectomy with urinary diversion. ORDER An increased initial evaluation greater than 30 percent for bladder cancer, status post radical cystectomy with urinary diversion, for the period from November 1, 1999 to January 5, 2005 is denied. A 60 percent evaluation for bladder cancer, status post radical cystectomy with urinary diversion, for the period commencing on January 6, 2005 is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND A review of the claims file shows that in a July 2004 decision, the RO, inter alia, granted the veteran's claims of entitlement to service connection for erectile dysfunction with penile implant and left epididymectomy, and service connection for a ventral hernia. A noncompensable evaluation was assigned for both disabilities, with an effective date for both the rating and the award of service connection of November 1, 1999, based upon the date he filed his original claims for VA compensation for these disabilities. Notice of this decision and the veteran's appellate rights were sent to him in August 2004. In September 2004, the veteran submitted a notice of disagreement with respect to the noncompensable evaluations assigned to each disability in that decision. However, a statement of the case addressing these issues was not furnished to the veteran. Accordingly, a statement of the case addressing the specific issues of entitlement to an initial compensable evaluation for impairment due to erectile dysfunction with penile implant and left epididymectomy, and impairment due to ventral hernia, must be furnished by the RO to the veteran in response to the timely notice of disagreement. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, this case is remanded for the following actions: The RO must provide the veteran and his representative a statement of the case as to the issues of entitlement to an initial compensable evaluation for erectile dysfunction with penile implant and left epididymectomy from November 1, 1999, and entitlement to an initial compensable evaluation for ventral hernia from November 1, 1999. The veteran must be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of both of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2004). Only if a timely substantive appeal is filed with respect to these issues, subject to current appellate procedures, should the case be returned to the Board for further appellate consideration in this regard. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs