Citation Nr: 0813310 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-08 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial disability rating in excess of 60 percent for service-connected residuals of papillary transitional cell bladder cancer. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from July 1960 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The November 2004 rating decision on appeal granted service connection for residuals of papillary transitional cell bladder cancer, and assigned a 100 percent disability rating from November 24, 2003, to June 1, 2004 (the six-month period following the veteran's initial diagnosis of bladder cancer), and a 10 percent disability rating from June 1, 2004, under Diagnostic Code (DC) 7528. The veteran submitted a notice of disagreement with the November 2004 rating decision. The RO issued a statement of the case in January 2006, in which he was granted a 60 percent disability rating from June 1, 2004. He then perfected his appeal by filing a substantive appeal in March 2006. Since the November 2003 rating decision did not result in a reduction of compensation payments currently being made, the issue is properly characterized as an appeal from the initial assignment of a disability rating following the grant of service connection. See 38 C.F.R. § 3.105(e) (2007). FINDINGS OF FACT 1. The competent evidence of record demonstrates that the veteran had a surgical resection of transitional cell carcinoma of the bladder in May 2004. 2. The competent evidence of record demonstrates that the veteran experiences urinary incontinence resulting in the use of seven to eight absorbent pads a day; a reoccurrence of his bladder cancer since May 2004 has not been shown. CONCLUSIONS OF LAW 1. For the period from June 1, 2004, to December 1, 2004, the criteria for a disability rating of 100 percent for residuals of papillary transitional cell bladder cancer have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115a, 4.115b, DC 7528 (2007). 2. For the period since December 1, 2004, the criteria for a disability rating in excess of 60 percent for residuals of papillary transitional cell bladder cancer have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115a, 4.115b, DC 7528 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this matter, the appeal arises from disagreement with the initial evaluation following the grant of service connection for papillary transitional cell bladder cancer. Although it appears that adequate notice was provided to the veteran in February 2004, the United States Court of Appeals for Veterans Claims (Court) has held that where the underlying claim for service connection has been granted and there is disagreement as to downstream questions (such as the disability rating assigned), the claim has been substantiated and there is no prejudice due to inadequate (or no) notice. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Federal Circuit has also held that once the underlying service connection claim is granted there is no duty to provide notice under 38 U.S.C.A. § 5103(a). Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board is not aware of the existence of additional relevant evidence in connection with the veteran's claim that VA has not sought. His service medical records, VA treatment records, private treatment records, and lay statements have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. He was also accorded VA examinations in September 2004 and December 2005 as part of this claim. 38 C.F.R. § 3.159(c)(4). The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Higher Initial Rating for Bladder Cancer 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The severity of a genitourinary system disability is ascertained, for VA rating purposes, by application of the criteria set forth at 38 C.F.R. §§ 4.115a and 4.115b. Malignant neoplasms of the genitourinary system are rated under DC 7528. Pursuant to these provisions, a 100 percent evaluation is warranted when the evidence indicates malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. A "Note" to this code section states that following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis following the cessation of the therapy, then the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. The Board notes that the current 60 percent rating is the highest available for voiding dysfunction. In addition, there is no higher schedular rating available for urinary frequency, obstructed voiding, or urinary tract infection. In order to warrant the next-higher 100 percent rating, the evidence must show renal dysfunction requiring regular dialysis or precluding more than sedentary activity, or markedly decreased function of the kidney or other organ system. A 100 percent rating would also be warranted with a recurrence of cancer. At the outset, the Board notes that claims for increased ratings, to include initial ratings, require consideration of entitlement to such ratings during the entire relevant time period involved, i.e. from the date the veteran files a claim which ultimately results in an appealed RO decision, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The medical records show that the veteran underwent a bladder tumor resection in November 2003 and was diagnosed with papillary transitional cell carcinoma. He then underwent Bacillus Calmette-Guerin (BCG) therapy. VA treatment records show that he has undergone repeat cystoscopies every three months. The treatment records indicate that one such follow-up cystoscopy discovered a mass, and the veteran underwent a transurethral tumor resection in May 2004, which confirmed Grade I-II transitional cell carcinoma of the bladder. The evidence thus established that he experienced a reoccurrence of his bladder cancer, and underwent a surgical procedure to remove the malignancy. Pursuant to DC 7528, the veteran is entitled to a 100 percent disability rating for six months following this May 2004 procedure. As noted, he was already in receipt of a 100 percent disability rating for the period of the claim from November 23, 2003, to June 1, 2004. Therefore, the Board finds that a 100 percent disability rating is warranted for the period of the claim from June 1, 2004 to December 1, 2004. The remaining issue is whether the veteran is entitled to an initial disability rating in excess of 60 percent for residuals of papillary transitional cell bladder cancer from December 1, 2004. Upon VA examination in September 2004, the veteran reported changing his undergarments two to three times a day due to urinary incontinence. Upon VA examination in December 2005, he reported urine incontinency resulting in the use of seven to eight absorbent pads a day. In this case, the only reported residuals of the veteran's bladder cancer treatment have related to voiding dysfunction. There is no evidence of record that demonstrates that he has suffered from renal dysfunction at any time during the appeal period. Therefore, there is no basis for a higher rating for renal dysfunction. Next, the veteran has repeatedly reported to his health care providers that he experiences painful urination, as well urinary urgency and incontinence, but he has denied any increase in urinary frequency. While the evidence does demonstrate that he has had difficulties with obstructed voiding, caused by tissue growth in the area of the prostate, the Board notes that the maximum disability rating for obstructed voiding is 30 percent. Since he is currently in receipt of a 60 percent disability rating based on urine leakage, the criteria for rating based on obstructed voiding would not provide a more favorable rating. Further, the veteran has reported urinary incontinence resulting in the use of seven to eight absorbent pads a day. Urine leakage at this level falls within the criteria for a 60 percent rating, the maximum available under the criteria for evaluating voiding dysfunction. As such, there is no basis for a higher rating based on voiding dysfunction. As noted above, in order to warrant a disability rating in excess of 60 percent for bladder cancer, the evidence must demonstrate a reoccurrence of the cancer. The medical evidence of record demonstrates that he has not experienced a reoccurrence of his bladder cancer during the period of the claim from December 1, 2004. Specifically, treatment records indicate that cystoscopies in October 2004 and January 2005 were negative for bladder tumors. A cystoscopy in March 2005 revealed a bladder lesion; a biopsy was performed in April 2005, which revealed cystitis cystica and no cancerous cells. In August and November 2005, cystoscopies were normal but revealed no bladder tumors. More recently, a cystoscopy performed in February 2007 revealed no tumors of the bladder. Reoccurrence of the veteran's bladder cancer has not been shown and a disability rating in excess of 60 percent is not warranted. After considering all the evidence of record, the Board finds that the veteran is entitled to a 100 percent rating to December 1, 2004, but no higher for the period since December 1, 2004. ORDER For the period from June 1, 2004, to December 1, 2004, a 100 percent disability rating for residuals of papillary transitional cell bladder cancer is granted. For the period since December 1, 2004, an initial disability rating in excess of 60 percent for residuals of papillary transitional cell bladder cancer is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs