Citation Nr: 0941649 Decision Date: 11/02/09 Archive Date: 11/09/09 DOCKET NO. 04-18 057 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation from April 14, 2003 to May 12, 2004; a disability evaluation greater than 20 percent from May 12, 2004 to November 21, 2008, and a disability evaluation greater than 60 percent from November 21, 2008 to the present, for residuals of prostate cancer. 2. Whether the decision to reduce the Veteran's compensation payments after December 1, 2003 due to incarceration was correct. ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2003 and November 2003 rating decisions of the Department of Veterans Affairs Regional Office in Houston, Texas. In April 2009, the Board remanded the matter to the RO via the AMC for due process considerations and to schedule the Veteran for a Travel Board hearing. Those actions completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2009, the Veteran was scheduled for a Travel Board hearing at the RO before the Board, however he did not appear. The Veteran has not submitted a timely request to postpone the hearing; therefore the Board will proceed with its appellate consideration as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704 FINDINGS OF FACT 1. From April 14, 2003 to August 29, 2003, the Veteran did not show symptoms of residuals of prostate cancer. 2. The Veteran had overactive bladder symptoms as of August 29, 2003, as evidenced by a prescription for oxybutynin chloride. This date is earlier than the date of May 12, 2004 that was assigned by the RO for these symptoms. 2. Prior to November 21, 2008, the medical evidence did not indicate that the Veteran required the wearing of absorbent materials which must be changed 2 to 4 times per day; or albumin constant or recurring with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101; or a daytime voiding interval of less than one hour or awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization; or recurrent symptomatic urinary tract infections requiring drainage or frequent hospitalization and/or requiring continuous intensive management. 3. The Veteran has never had persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 4. The Veteran has been incarcerated in a state prison system for conviction of a felony since July [redacted], 1981. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating effective April 14, 2003 through August 29, 2003 for residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.21, 4.115a, 4115b, Diagnostic Codes 7527, 7528 (2009). 2. The criteria for a 20 percent rating for residuals of prostate cancer were met on August 29, 2003, but no earlier. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.21, 4.115a, 4115b, Diagnostic Codes 7527, 7528 (2009). 3. The criteria for a rating higher than 20 percent between August 29, 2003 and November 21, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.21, 4.115a, 4115b, Diagnostic Codes 7527, 7528 (2009). 4. The criteria for a rating higher than 60 percent from November 21, 2008 to the present, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.21, 4.115a, 4115b, Diagnostic Codes 7527, 7528 (2009). 5. The reduction of the Veteran's disability compensation, effective December 1, 2003, due to incarceration for a felony conviction, was proper. 38 U.S.C.A. §§ 5107, 5313 (West 2002); 38 C.F.R. §§ 3.103, 3.665 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Residuals of prostate cancer Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). If two evaluations are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski , 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Compensation for service-connected disability is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. With regard to the Veteran's residuals of prostate cancer, the RO issued a rating decision in September 2003 granting service connection for residuals status post radical prostatectomy at a noncompensable rating effective April 14, 2003. The Veteran disagreed with this initial rating. In a January 2005 rating decision, the RO increased the rating to 20 percent effective May 12, 2004. In a December 2008 rating decision, the RO increased the rating to 60 percent effective November 21, 2008. The Veteran contends that he merits higher disability ratings at every stage throughout the pendency of this claim. Under the rating schedule, malignant neoplasms of the genitourinary system are evaluated with Diagnostic Code 7528, which holds that if there has been no local reoccurrence or metastasis, the residuals must be rated as voiding dysfunction or renal dysfunction, whichever is predominant. For renal dysfunction, a noncompensable rating is warranted for albumin and casts with history of acute nephritis or hypertension non-compensable under diagnostic code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent rating is warranted for constant albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80 mg%, or creatinine 4 to 8 mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. For voiding dysfunction, a 20 percent rating is warranted for requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is warranted for requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. For 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 is warranted for daytime voiding interval between one and two hours, or awakening three to four times per night. A 40 percent rating is warranted for daytime voiding interval less than one hour, or awakening to void five or more times per night. For obstructed voiding, a noncompensable rating is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating is warranted for marked obstructive symptomatology such as hesitancy, slow or weak stream, or decreased force of stream. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. For urinary tract infection, a 10 percent rating is warranted for long-term drug therapy, 1 to 2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage or frequent hospitalization and/or requiring continuous intensive management. The Veteran submitted private records from John Sealy Hospital and from the Texas Department of Criminal Justice. The records indicate that the Veteran underwent a radical prostatectomy in October 2002. The post-operative discharge summary indicated that the Veteran had "no postvoid residual", no extravasation or straining, and showed "good emptying". The records indicate that the Veteran was prescribed oxybutynin chloride for overactive bladder on August 29, 2003. He was later prescribed imipramine for enuresis and neurogenic bladder on September 9, 2003. The Veteran requested and received absorbent pads, stating that he needed several pads daily. However, there is no medical evidence in the records submitted to support the Veteran's contentions regarding the quantity of absorbent pads required per day. Based on these records, the RO issued a rating decision in January 2005 increasing the rating for residuals of prostate cancer to 20 percent effective May 12, 2004. The RO mistakenly found May 12, 2004 to be the first date of prescriptions related to the Veteran's bladder symptoms. As stated above, the Veteran was first prescribed medication and given absorbent pads as of August 29, 2003. The Veteran therefore merits the 20 percent rating effective August 29, 2003. The Veteran was afforded a VA genitourinary examination in November 2008. He denied any history of urinary tract infections, dysuria, frequency, hematuria, nocturia, urgency, stones, or testicular atrophy. The examiner found no recurrence of prostate cancer since surgery. The Veteran complained of urinary incontinence and anal pain. He stated that he wears disposable briefs which he changes 4 to 5 times per day. He related problems with fecal incontinence at times yet was vague regarding frequency. The examiner diagnosed prostate cancer status post resection with continuing problems with urinary incontinence. The impression was urinary incontinence with required wearing of absorbent materials which must be changed more than 4 times per day. Based upon this examination, the RO issued a rating decision in December 2008, increasing the rating for residuals of prostate cancer to 60 percent effective November 21, 2008, the date of VA examination. The Board finds that the Veteran met the criteria for a 20 percent rating for residuals of prostate cancer as of August 29, 2003, the date on which the medical evidence first indicates a voiding dysfunction requiring prescription medication and the wearing of absorbent materials. A 20 percent rating is the minimum warranted for a voiding dysfunction requiring the wearing of absorbent materials. In light of the Veteran's incarceration during this time period, this decision does not appear to impact the amount of compensation the Veteran will receive. Otherwise, the Board finds that the medical records, overall, provide evidence against this claim. The evidence fails to indicate that the criteria for a compensable initial rating from April 14, 2003 to August 29, 2003 have been met, or that the criteria for a rating greater than 20 percent were met between August 29, 2003 and November 21, 2008, or that the criteria for a rating greater than 60 percent have been met at any time. Simply stated, beyond the earlier effective date of August 29, 2003 which the Board finds is proper for the 20 percent rating, the Veteran's symptoms do not merit a higher rating during any time period according to the schedular criteria. Prior to August 29, 2003, the Veteran was not issued absorbent materials or prescribed medication to treat a voiding dysfunction. Prior to November 21, 2008, there was no evidence regarding the frequency with which the absorbent materials needed to be changed per day, nor of albumin or edema or hypertension, nor of a daytime voiding interval of less than one hour or awakening to void five or more times per night, nor of obstructive voiding or urinary tract infections to merit a higher rating. At no time has there been evidence of persistent edema and albuminuria or generalized poor health with lethargy, weakness, anorexia, weight loss, or limitation of exertion. While there are indications of problems, it is important to note that these problems are the basis for the current evaluations. Without some medical symptoms, there would be no basis for the current evaluations, let alone higher evaluations. Overall, the Board finds that the Veteran's symptoms of his residuals of prostate cancer more closely match the noncompensable schedular criteria prior to August 29, 2003, the 20 percent criteria between August 29, 2003 and November 21, 2008, and the 60 percent criteria from November 21, 2008 to the present. The Board must find that the post-service treatment records, as a whole, provide evidence against this claim, failing to indicate a basis to grant higher evaluations. Accordingly, the Board finds that the preponderance of the evidence is against a compensable rating prior to August 29, 2003; a rating greater than 20 percent between August 29, 2003 and November 21, 2008; or a rating greater than 60 percent from November 21, 2008 to the present, for residuals of prostate cancer. 38 C.F.R. § 4.3. 2. Reduction due to incarceration Under VA laws and regulations, a person who is incarcerated in a Federal, State or Local penal institution in excess of 60 days for conviction of a felony will not be paid compensation in excess of that amount specified in 38 C.F.R. § 3.665 beginning on the 61st day of incarceration. 38 U.S.C.A. § 5313(a)(1); 38 C.F.R. § 3.665(a). In the case of a veteran with a service-connected disability rated at 20 percent or more, the veteran shall not be paid an amount that exceeds the rate under 38 U.S.C.A. § 1114(a), which is at the rate of 10 percent. 38 C.F.R. § 3.665(d). If a disability evaluation is less than 20 percent, the veteran shall receive one-half the rate of compensation payable under 38 U.S.C.A. § 1114(a). 38 C.F.R. § 3.665(d). However, VA must notify the veteran that his benefits are subject to reduction due to his incarceration, of the rights of dependents to an apportionment while the person is incarcerated, and conditions under which payments to the person may be resumed upon release from incarceration. 38 C.F.R. § 3.665(a). In addition, no award of compensation shall be reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken. 38 C.F.R. §§ 3.103(b)(2), 3.105(h). The Veteran's ratings were first reduced pursuant to 38 C.F.R. § 3.665 effective October 1, 1988. It appears that a computer error in connection with a legislative increase in compensation rates effective December 1, 2001, caused the Veteran's benefits to be returned to the full amount. The Veteran was informed of the discovery of this error in November 2003 and clearly informed that his benefits would be reduced due to incarceration effective December 1, 2003. The evidence shows that the Veteran has been continuously incarcerated for a felony conviction since July [redacted], 1981. The Veteran does not dispute that he has been incarcerated since December 1, 2003. Accordingly, the requirements for the reduction of the veteran's disability compensation benefits due to incarceration have been met. 38 C.F.R. § 3.665. Because the law, rather than the facts in this case, is dispositive, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b). Duty to notify and to assist When addressing the merits of the Veteran's claims 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 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in February 2003, April 2003, August 2007, and June 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant 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 provided medical records from the Texas Department of Criminal Justice and the John Sealy Hospital at University of Texas. The Veteran was afforded a VA examination in November 2008. The appellant 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 assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board has decided upon the merits of the appellant's appeal. ORDER A compensable evaluation for residuals of prostate cancer prior to August 29, 2003 is denied. A 20 percent evaluation for residuals of prostate cancer is granted effective August 29, 2003, but no earlier. A rating greater than 20 percent for residuals of prostate cancer between August 29, 2003 and November 21, 2008 is denied. A rating greater than 60 percent for residuals of prostate cancer at any time is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs