Citation Nr: 0904039 Decision Date: 02/05/09 Archive Date: 02/13/09 DOCKET NO. 06-03 511A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. 2. Entitlement to an initial evaluation greater than 10 percent prior to March 7, 2006, and greater than 20 percent thereafter, for post-operative residuals of prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for the Veteran's diabetes mellitus with an assigned evaluation of 20 percent, effective from April 10, 2002, and post- operative residuals of prostate cancer, with a 100 percent evaluation evaluation, effective April 10, 2003, and a 10 percent evaluation from August 1, 2003. In April 2007, the RO granted an increased rating of 20 percent for post- operative residuals of prostate cancer, effective from March 7, 2006. The record reflects that the Veteran has raised the issue of an increase in disability for his erectile dysfunction. This issue has not been developed for appellate review and is referred to the RO for appropriate action. FINDINGS OF FACT 1. The evidence of record supports a finding that the Veteran's diabetes mellitus required insulin, restricted diet, and regulation of activities during the entire appeal period. 2. Prior to March 7, 2006, the Veteran's post-operative residuals of prostate cancer were manifested by frequency of urination once every two hours during the day and nocturia 2 times per night. 3. From March 7, 2006, the Veteran's post-operative residuals of prostate cancer has been manifested by frequency of urination every hour during the day and nocturia 2-3 times per night. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 40 percent evaluation, but no more, for diabetes mellitus have been met during the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.119, Diagnostic Code 7913 (2008). 2. The criteria for initial disability evaluations greater than 10 percent prior to March 7, 2006, and 20 percent thereafter, for post-operative residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.115, Diagnostic Codes 7527, 7528 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the appellant of the information and evidence not of record that (1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, and (3) the appellant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). For an increased-rating claim, VA must, at a minimum, notify a claimant that, (1) to substantiate an increased-rating claim, the evidence must demonstrate "a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life" and (2) if an increase in the disability is found, the rating will be assigned by applying the relevant Diagnostic Codes (DC) based on "the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life." The notice must also provide examples of the types of medical and lay evidence that may be obtained or submitted. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Such notice was not provided in this case. Although the appellant received inadequate notice, and that error is presumed prejudicial, the record reflects that the purpose of the notice was not frustrated. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores, 22 Vet. App. at 49. In a November 2004 letter, the RO explained that the VA was responsible for (1) requesting records from Federal agencies, (2) assisting in obtaining private records or evidence necessary to support his claim, and (3) providing a medical examination if necessary. A January 2006 statement of the case (SOC) explained the criteria for the next higher disability ratings available for diabetes mellitus and for post-operative residuals of prostate cancer under the applicable diagnostic codes. The January 2006 SOC also provided the appellant with the applicable regulations relating to disability ratings for his service-connected diabetes mellitus and for post-operative residuals of prostate cancer. Moreover, the record shows that the appellant was represented by Disabled American Veterans throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his increased rating claims, and as such, that he had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected. See Sanders, 487 F.3d at 489. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the severity of the disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. Because this is an appeal from an initial grant of service connection and originally assigned ratings, separate ratings may be assigned for separate time periods that are under evaluation. That is, appellate review must consider the applicability of "staged ratings" based upon the facts found during the time period in question. Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Diabetes Mellitus At the outset, the Board notes that service connection is in effect for coronary artery disease, hypertension, peripheral neuropathy of the left and right extremities and diabetic retinopathy, all of which are secondary to the Veteran's service-connected diabetes mellitus. The Veteran's diabetes mellitus has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent disability rating is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent disability rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. The Veteran appealed the initial assignment of a 20 percent disability rating. Service connection for the Veteran's type II diabetes mellitus was based on in-service herbicide exposure. Private medical treatment records dated from June 2001 to June 2003 show that the Veteran was treated for his diabetes mellitus with insulin and with dietary restrictions. In a May 2004 statement, the Veteran reported that for the past two years his diabetes has not been under control and that his physician has changed the type of insulin he takes several times. He also stated that he was on a restricted diet and that his activities and travel were limited due to frequent urination. The Veteran underwent a VA (QTC) examination in April 2005. He stated that he has not been hospitalized because of his diabetes and that he sees his doctor six times a year. With regard to functional impairment, the examiner noted that the Veteran should not engage in prolonged standing or walking as a result of diabetic neuropathy. An April 2006 letter was received from the Veteran's private physician who stated that he has been treating the Veteran for diabetes for over twenty years. He reported that the Veteran was struggling with very high blood sugar levels and was seen regularly for his condition. He indicated that the Veteran required at a minimum, two injections of different types of insulin in the morning and evening and an additional dose when his blood sugar rose above 140 during the day. He stated that the Veteran was on a restricted diet and that his activities were regulated. The Veteran was to avoid strenuous occupational and recreational activities in order to prevent lowering of his blood sugar and triggering a hypoglycemic reaction. On VA (QTC) examination in January 2007, the Veteran denied any hospitalization for episodes of hyper or hypoglycemia, although he reported some episodes of hypoglycemia at home. The evidence supports the assignment of a 40 percent disability rating for the Veteran's service-connected diabetes mellitus. The medical evidence of record shows that the Veteran's diabetes mellitus is manifested by the need for insulin, restricted diet, and regulation of activities. This is the exact criteria contemplated by a 40 percent rating. The evidence also shows that this level of disability has been in effect since the date service connection was granted. Accordingly, an initial disability rating of 40 percent is granted for the Veteran's diabetes mellitus. The Board further finds that an initial evaluation in excess of 40 percent is not warranted. The objective medical evidence of record does not show the Veteran's diabetes mellitus required insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated in order to warrant a 60 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. Post-Operative Residuals of Prostate Cancer Malignant neoplasms of the genitourinary system are rated under Diagnostic Code 7528. Pursuant to these provisions, 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. Id. Additionally, postoperative residual disability of the prostate gland is rated as either a urinary tract infection or as voiding dysfunction whichever is greater. 38 C.F.R. § 4.115(b), Diagnostic Code 7527 (2008). The Veteran has not undergone additional surgery or therapy for prostate cancer since 2003. Hence, the Veteran's condition should be rated pursuant to the Note to Diagnostic Code 7528 and Diagnostic Code 7527. Id. The Veteran's prostate cancer residuals are most appropriately evaluated in terms of voiding dysfunction, as there is no medical evidence of record indicative of renal dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. See 38 C.F.R. § 4.115a (2008). The Veteran has been assigned a 10 percent rating prior to March 7, 2006, and a 20 percent rating thereafter based upon urinary frequency. A 10 percent rating is warranted for daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating contemplates a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval less than one hour or; awakening to void five or more times per night. 38 C.F.R. § 4.115(a) (2008). A higher 30 percent rating may be assigned for voiding dysfunction that requires the wearing of absorbent materials which must be changed 2 to 4 times per day; or urinary tract infections where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management; or obstructive voiding with urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115(a) (2008). Service connection for the Veteran's post-operative residuals of prostate cancer was based on in-service herbicide exposure. Private medical treatment records show that the Veteran was diagnosed with prostate cancer in September 2002 and that he underwent retropubic prostatectomy in January 2003. Post- surgical treatment records dated in 2003 show that the Veteran experienced mild incontinence. In a February 2004 private medical treatment record, the Veteran reported that occasionally at night he will wet himself but other than that, every with activity, he did not have any urinary control problems. In an April 2005 treatment record, he reported that he had pretty good control but that he leaked recently during sleep and occasionally with stress maneuvers. The Veteran was placed on a trial medication of Detrol. The clinical assessment was urgency and frequency and mild stress incontinence. In a May 2005 treatment record, it was noted that the Veteran experienced marked improvement on Detrol with very little stress incontinence. The Veteran underwent a VA (QTC) examination in April 2005. He reported that he urinated frequently once every two hours during the daytime and twice at night every four hours. In a March 2006 letter from the Veteran's private physician, it was noted that since the prostate cancer surgery, the Veteran experienced urinary frequency. He was on Detrol for his overactive bladder. In a May 2006 statement, the Veteran's friend reported that he and the Veteran have played golf at least one a week and that the Veteran has never been able to go more than 2 holes without having to take a restroom break. In a March 7, 2006 VA outpatient treatment record and subsequent May and June treatment records, the Veteran complained of daytime voiding every hour and of nighttime voiding two to three times. He denied dysuria and stated that Detrol had improved the urinary frequency. The Veteran underwent a VA (QTC) examination in January 2007. He reported that he experienced some leakage of urine when a makes a wrong turn or coughs and that he occasionally wore a pad. He stated that he gets up three to four times a night to urinate and that during the day, he urinates hourly. The Veteran was diagnosed as having mild stress urinary incontinence. In an August 2007 VA outpatient treatment record, the Veteran continued to report the presence of daytime urinary frequency with a urinary frequency of two to three times at night. Prior to March 7, 2006, the Veteran reported that he voided once every two hours during the daytime and twice at night every four hours. Thus, the criteria for a 20 percent rating based on awakening three or four times per night were not met. In short, the preponderance of the evidence is against assigning an initial rating higher than 10 percent prior to March 7, 2006, based on urinary frequency. From March 7, 2006, the Veteran has reported frequency of urination of every hour per day and nocturia two to three times per night. This report comports with the 20 percent evaluation assigned for urinary frequency. There is no evidence of a daytime voiding interval less than one hour, or; awakening to void five or more times per night to warrant a 40 percent rating. The Board has considered other potentially applicable codes, to include evaluations based upon voiding dysfunction, obstructed voiding, and urinary tract infections. While the Veteran reported during the January 2007 examination that he occasionally wore a pad, the Board finds this single vague report of the use of absorbent materials to is insufficient evidence, when considered with the record as a whole, to warrant a rating for the Veteran's disability based on urine leakage. Furthermore, the Veteran has denied obstruction of urinary flow, and there is no history of catheterization. The Veteran also does not have a history of recurrent urinary tract infections. As such, increased compensation based upon these potentially applicable diagnostic codes is not warranted. The Board finds that the preponderance of the evidence is against initial evaluations greater than 10 percent prior to March 7, 2006, and greater than 20 percent thereafter, for post-operative residuals of prostate cancer. As the preponderance of the evidence is against this claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the appeal concerning this claim is denied. ORDER An initial disability rating of 40 percent is granted for diabetes mellitus. An initial evaluation greater than 10 percent prior to March 7, 2006, and greater than 20 percent thereafter, for post- operative residuals of prostate surgery is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs