Citation Nr: 0617649 Decision Date: 06/16/06 Archive Date: 06/27/06 DOCKET NO. 04-34 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased original evaluation for prostate cancer, rated as 20 percent disabling prior to February 17, 2005 and 40 percent disabling subsequent to February 17, 2005. ATTORNEY FOR THE BOARD Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from September 1963 to September 1966. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The veteran was granted service connection for prostate cancer and assigned a noncompensable rating in a rating decision dated in October 2002. In an August 2003 rating decision the veteran was granted an increased rating to 20 percent effective the date of his initial claim. An October 2005 rating decision increased the veteran's disability evaluation for prostate cancer to 40 percent effective February 17, 2005. FINDINGS OF FACT 1. Prior to June 17, 2004, the veteran's prostate cancer was not manifested by daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night and did not require the wearing of absorbent materials which must be changed 2 to 4 times per day. 2. As of June 17, 2004, the veteran's prostate cancer was manifested by nocturia five or more times per night, but was not shown to require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. CONCLUSION OF LAW 1. The criteria for an initial disability evaluation in excess of 20 percent prior to June 17, 2004 for residuals of prostate cancer have not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2005). 2. The criteria for an initial disability evaluation of 40 percent, but no higher, from June 17, 2004 for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2005); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The notification obligation in this case was accomplished by way of a letters from the RO to the veteran dated in May 2003 and October 2005. While this notice does not provide any information concerning the effective date that could be assigned should an increased evaluation be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), the effective date assigned by the RO, one year prior to the date of the veteran's claim for service connection, represents the earliest possible effective date in this case. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Therefore, veteran is not prejudiced by the failure to provide him that further information. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran has been kept appraised of the RO's actions in this case by way of the Statement of the Case and the Supplemental Statement of the Case, and been informed of the evidence considered in the case, the pertinent laws and regulations and a rationale for the decision reached in denying the claim. The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's claim. The veteran essentially contends that the evaluations assigned for his prostate cancer since service connection was granted do not accurately reflect the severity of his disability. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the current level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, this is not applicable in an appeal from a rating assigned by an initial grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). Because the appellant has appealed the initial assignment of a disability rating, the Board must also consider whether or not he was entitled to a higher disability rating at any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119, 126 (separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings). In this case, the RO assigned a 20 percent evaluation between July 15, 2001 and February 16, 2005 and a 40 percent evaluation from February 17, 2005. The Board will consider whether a higher rating is warranted at any point since the veteran's initial claim. 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. The veteran was initially diagnosed with prostate cancer in 1996 and had surgery in December 1996. The veteran filed his claim seeking service connection in July 2002, and an October 2002 rating decision granted service connection for prostate cancer, effective July 15, 2001, one year prior to the date of the veteran's claim. The residuals of prostate cancer are rated under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. Pursuant to Diagnostic Code 7528, a 100 percent evaluation is warranted when the evidence indicates malignant neoplasms of the genitourinary system. A "Note" to this code section states that the rating of 100 percent will continue for six months following cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, and if there has been no local reoccurrence or metastasis following the cessation of the therapy, then the disability is to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Additionally, postoperative residual disability of the prostate gland may be rated as either a urinary tract infection or as voiding dysfunction whichever is greater. 38 C.F.R. § 4.115b, Diagnostic Code 7527. The veteran has not undergone additional surgery since December 1996, and there is no indication from the medical records, or from information provided by the veteran that the cancer has returned or that there has been a metastasis in the year prior to his July 2002 claim. Hence, the veteran's condition should be rated pursuant to the Note of Diagnostic Code 7528. The Board notes that the veteran's residuals of prostate cancer are most appropriately evaluated in terms of voiding dysfunction, as there is no medical evidence of record indicative of renal dysfunction or urinary tract infection. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. See 38 C.F.R. § 4.115a. Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is warranted. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night. A 20 percent rating contemplates daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 10 percent rating contemplates daytime voiding interval between 2 and 3 hours, or awakening to void 2 times per night. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. The veteran's prostate cancer has been manifested mostly by a voiding dysfunction over the past few years. There are no private or VA treatment notes showing any renal dysfunction, and no evidence of urinary stricture, or surgery since December 1996. The private medical records show that the veteran has complained of increasing nocturia and increasing urinary frequency during the day. A treatment note from Lillian H. Rinker, M.D. dated in October 1999 indicated the veteran had nocturia twice a night without hematuria or dysuria. Another treatment note from Dr. Rinker dated in April 2001 indicated nocturia one to two times usually only one. There was no evidence of increased daytime urinary frequency, no evidence of the use of absorbent pads, and no evidence for any hesitancy or loss of stream in urination. A later treatment noted, dated in June 2004 showed that the veteran was complaining of some difficulty with incontinence and that it tended to occur with exertion or when his bladder was moderately full. The veteran reported leaking only a small amount of urine. He did complain of increased nocturia four to five times a night with no hematuria. By October 2004, the reports from Dr. Rinker indicated nocturia 5 times or more with some daytime increased urinary frequency and leakage of urine, especially with a full bladder. The veteran underwent a VA examination in August 2003. The veteran reported urinary urgency and daytime frequency at least every two hours and sometimes more often. He reported nocturia routinely three or four times a night. The veteran had post voiding dribbling and stress incontinence. Occasionally the veteran had to use absorbent pads at night. The veteran had another VA examination in February 2005. The veteran complained of daytime urinary frequency every 2 hours sometimes more. He has had an increased of nocturia to five or six times a night. The veteran has post void dribbling and urinary stress incontinence. There was no evidence of the use of absorbent pads during the day, and no evidence of urinary stricture or renal dysfunction. The Board has reviewed all of the evidence pertinent to the veteran's claim. Since his surgery, the veteran's primary complaint has been increased urinary frequency, post void dribbling, and nocturia. The VA examination in August 2003 indicates nocturia three or four times a night. A private treatment note dated June 17, 2004 showed the veteran reported experiencing four to five episodes of nocturia. The treatment records starting in October 2004 consistently show the veteran complaining of nocturia at least five times a night. By the time of the February 2005 VA examination, this had increased to five or six times a night. The veteran does not wear absorbent pads expect occasionally at night. There is no indication of any obstructed voiding or any need for catheterization. Applying the regulations to the facts in the case, the Board finds that a disability rating in excess of 20 percent for the veteran's residuals of prostate cancer is not warranted prior to June 17, 2004. The veteran does not have urinary incontinence that requires the use of pads that must be changed two to four times a day, there is no evidence of daytime voiding intervals of less than one hour or awakening five or more times a night to void, and there is no evidence that the veteran requires catheterization. There is also no evidence of renal dysfunction. Therefore, there is no basis for a disability rating in excess of 20 percent prior to June 17, 2004. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. The private treatment notes from Dr. Rinker, however, indicate that beginning in June 2004 the veteran has complained of nocturia of five or more times per night. The February 2005 VA examination and the March 2005 treatment notes confirm the same. Under the regulations, awakening to void five or more times per night warrants a 40 percent rating. Therefore, a 40 percent rating is warranted for the veteran's residuals of prostate cancer from June 17, 2004. However, there is no evidence that the veteran's disability requires the use of an appliance or the wearing of absorbent materials that must be changes more then four times per day, the criteria for an evaluation in excess of 40 percent. Therefore, there is no basis for a disability rating in excess of 40 percent subsequent to June 17, 2004. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. ORDER An initial disability evaluation in excess of 20 percent prior to June 17, 2004 for residuals of prostate cancer is denied. Subject to the provisions governing the award of monetary benefits, an initial disability evaluation of 40 percent, but no higher, from June 17, 2004 for residuals of prostate cancer, is granted. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs