Citation Nr: 0810271 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-25 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an initial rating in excess of 20 percent for service-connected residuals of prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from September 1949 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The October 2003 rating decision on appeal granted service connection for prostate cancer, and assigned a 100 percent disability rating from November 18, 2002 to July 9, 2003, and a 20 percent disability rating from July 9, 2003, under Diagnostic Code 7528. The veteran submitted a notice of disagreement with the October 2003 rating decision, stating that he disagreed with the decision to reduce his award, and contending that he was entitled to a 100 percent disability rating because his condition had not yet stabilized. The RO issued a statement of the case in July 2005, in which the effective date of the initial 20 percent disability rating was changed to September 4, 2003. The veteran then perfected his appeal by filing a substantive appeal in August 2005. Since the October 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). As noted below, the veteran's representative, in his February 2008 informal hearing presentation, contends that the veteran is entitled to a total disability rating based on individual unemployability (TDIU) and also states that the RO should issue a statement of the case concerning the veteran's entitlement to an increased rating for radiation proctitis. Both of these issues were addressed in a May 2006 rating decision, and the veteran did not file a notice of disagreement as to these issues within one year of the date of notice of the decision. Therefore, these issues have not been adjudicated, developed or certified for appellate review. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993). Accordingly, the issues of entitlement to a TDIU and an increased rating for radiation proctitis are referred to the RO for appropriate consideration. FINDING OF FACT The competent evidence of record demonstrates that the veteran's prostate disability is manifested by awakening to void three to four times per night. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for service-connected residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION 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 prostate cancer. Although it appears that adequate notice was provided to the veteran in September 2003, the 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). In any event, in an April 2004 letter the veteran was informed of what evidence was needed to establish a higher evaluation for prostate cancer, what VA would do or had done, and what evidence the veteran should provide; and, it informed the veteran to send in any evidence in the veteran's possession that pertains to the claim. The Board is not aware of the existence of additional relevant evidence in connection with the veteran's claim that VA has not sought. The veteran's 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. The veteran was also accorded VA examinations in September 2003 and November 2005 as part of this claim. 38 C.F.R. § 3.159(c)(4). The veteran's representative contends that the veteran should be afforded a VA examination, and requests that this claim be remanded to the agency of original jurisdiction (AOJ) in order to adjudicate a claim for a TDIU. The Board notes that the veteran was denied entitlement to TDIU in a May 2006 rating decision, and that the record reflects that the veteran did not file a notice of disagreement with that decision within one year of the date of notice of the decision. The veteran was also afforded a VA examination in November 2005, and the veteran has not suggested that his urinary symptoms have worsened since that examination. Further, despite the veteran's representative's assertions, the Board finds that the issue of entitlement to a higher initial rating for prostate cancer is not "inextricably intertwined" with the issue of entitlement to TDIU, as the veteran contends that he is unable to work based on the effects of his service-connected radiation proctitis, and not due to the urinary symptoms which are the subject of this appeal. 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 to the veteran is required to fulfill VA's duty to assist the veteran 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 Prostate 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 Diagnostic Code 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. For continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence, a 60 percent disability rating is warranted where the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is required. A 40 percent disability rating is warranted where the wearing of absorbent materials which must be changed 2 to 4 times per day is required. When the condition requires the wearing of absorbent materials which must be changed less than 2 times per day, a 20 percent disability rating is warranted. 38 C.F.R. § 4.115a. When determining a disability rating based on urinary frequency, a daytime voiding interval of less than one hour, or awakening to void five or more times per night warrants a 40 percent disability rating. A 20 percent disability rating is warranted where the daytime voiding interval is between one and two hours, or where the veteran is awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or awakening to void two times per night. 38 C.F.R. § 4.115a. For obstructed voiding, urinary retention requiring intermittent or continuous catheterization warrants a 30 percent disability rating. A 10 percent disability rating is warranted for 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 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable rating. 38 C.F.R. § 4.115a. 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, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). There is no evidence that the veteran has had any recurrence of his prostate cancer. While there is evidence that the veteran's prostate-specific antigen (PSA) had increased after his prostate cancer treatment, as stated by the veteran in his notice of disagreement, it has since decreased and the spike has not been shown to indicate a recurrence of the veteran's prostate cancer. The Board also notes that there is no evidence of record that demonstrates that the veteran has suffered from renal dysfunction at any time during the appeal period. The medical records show that the veteran received external beam radiation and brachytherapy treatment for prostate cancer in November and December 2002. A January 2003 private treatment record shows that the veteran's urinary symptomatology had resolved entirely. A note from the veteran's private urologist, dated June 2003, reveals that the veteran's voiding complaints were easily managed with medication. The veteran underwent a VA examination in September 2003. The veteran reported awakening to void three to four times each night since being treated for prostate cancer. A May 2004 VA outpatient treatment note reveals that the veteran reported that medication helped with his urinary output "quite nicely." The veteran underwent a second VA examination in November 2005. The veteran reported urinary frequency and urgency, as well as awakening to void two to three times per night. The only reported residuals of the veteran's prostate cancer treatment have related to voiding dysfunction. The veteran has repeatedly reported to his health care providers that his urinary symptoms are controlled by medication, and has not indicated that he experiences urinary incontinence or requires the use of pads for such incontinence. Further, the record does not contain any evidence of obstructed voiding. Therefore, the criteria for compensable ratings on the basis of urine leakage or obstructed voiding have not been met at any time during the appeal period. Upon VA examination, the veteran reported awakening to void, at most, three to four times each night. However, urinary frequency at this level still falls squarely within the criteria for a 20 percent rating. To warrant a 40 percent rating, the next higher rating on this basis, the veteran's voiding interval would have to be less than one hour during the day or awakening five or more times per night - and those levels of urinary frequency have not been shown. The veteran also contends that he has chronic gastric problems which are associated with the prostate cancer treatment he received. The veteran further contends that he is entitled to a higher disability rating due to these symptoms. However, the Board notes that the veteran was granted service connection for radiation proctitis in the October 2003 rating decision, and was assigned a 30 percent disability rating due to chronic diarrhea. Therefore, the veteran's complaints of abdominal pain and frequent, urgent bowel movements cannot be used to establish a higher disability rating for his service-connected residuals of prostate cancer, because this would constitute pyramiding and is not allowed. See 38 C.F.R. § 4.14 (evaluation of the same manifestation under different diagnoses is to be avoided). In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disability. 38 C.F.R. § 3.321(b)(1). Here, though, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran's disability level. There is no evidence that the veteran has been hospitalized for treatment of his prostate disability since the radiation and brachytherapy in 2002. He has submitted evidence of unemployment due to excessive gas, abdominal pain, and stool incontinence, but, as noted, these symptoms are not to be used to assign a disability rating for residuals of prostate cancer. The record does not reflect marked interference with employment based on his urinary symptoms. There is no evidence of any unusual or exceptional circumstances that would take the veteran's case outside the norm so as to warrant referral to VA's Compensation and Pension Service for consideration of an extraschedular rating. See Sanchez- Benitez v. West, 13 Vet. App. 282, 287 (2000); VAOPGCPREC 6- 96. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for a higher initial rating for the entire period of the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert, supra. The claim for a schedular disability rating greater than 20 percent for residuals of prostate cancer is, therefore, denied. ORDER An initial disability rating in excess of 20 percent for residuals of prostate cancer is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs