Citation Nr: 0810725 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 02-15 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of prostate cancer. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran retired from the U.S. Army in June 1972, with 20 years of active duty service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the Regional Office (RO) that assigned the veteran an evaluation of 20 percent for residuals of prostate cancer after the appropriate period following completion of cancer treatment. The veteran disagrees with the 20 percent rating assigned. FINDING OF FACT The competent medical evidence of record shows that the current postoperative residuals of the veteran's prostate cancer are manifested by urinary frequency not more than every 2 hours during the day and 2 to 3 times at night; the veteran does not wear absorbent pads. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of prostate cancer have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.115a and 4.115b, Diagnostic Code 7527 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For an increased-rating claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in an April 2004 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim, including evidence from medical records, statements from doctors containing physical and clinical findings, the results of laboratory tests, statements from individuals who can describe his symptoms, and his own statement describing symptoms. The letter also advised the veteran as to what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to submit any further evidence in his possession that pertains to the claim. The Board notes that the June 2006 supplemental statement of the case also notified the veteran of the evidence needed to establish a disability rating and effective date, to include submitting or advising VA of any evidence that concerns the level of disability. The Board further points out that the supplemental statements of the case dated in July 2003 included the complete rating criteria for the veteran's service-connected genitourinary disability. The case was last readjudicated June 2006. In this case, the Board is aware that the VCAA letters do not contain the level of specificity set forth in Vazquez- Flores. However, the Board does not find that any such procedural defect constitutes prejudicial error in this case because of evidence of actual knowledge on the part of the veteran and other documentation in the claims file reflecting that a reasonable person could be expected to understand what was needed to substantiate the claim. See Sanders, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the Board is aware of the veteran's statements in his VA examinations and in VA outpatient treatment records, in which a description was made of the effect of the service-connected disability on his functioning. Moreover, the statements provided by the veteran and his representative discussing symptomatology reflect actual knowledge of what is needed to substantiate the claim for a higher rating. In fact, it was suggested that the 40 percent criteria was met. There is no indication in the record that the veteran seeks private treatment for his condition, and VA treatment records have been obtained. Additionally, the veteran was afforded VA examinations to evaluate his condition. Thus, the post-adjudicatory notice and opportunity to develop the case provided during the extensive administrative appellate proceedings rendered any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, supra. Further, the duty to assist was met. As discussed above, the veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, and there is no additional notice that needs to be provided. Moreover, as the Board concludes below that the preponderance of the evidence is against an evaluation in excess of 20 percent for residuals of prostate cancer, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under the applicable criteria, 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. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's residuals of prostate cancer are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7527. For voiding dysfunction, the particular voiding condition is to be rated as urine leakage, urinary frequency, or obstructed voiding. Urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence) requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating; requiring the wearing of absorbent materials which must be changed 2 to 4 times per day warrants a 40 percent rating; requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. Urinary frequency with daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating; daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating; daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Obstructed voiding with obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable (0 percent) rating. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of (1) post void residuals greater than 150 cc, (2) uroflowmetry with 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 warrants a 10 percent rating. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115a. Urinary tract infection with poor renal function is rated as renal dysfunction. Urinary tract infection with long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent rating. Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating. 38 C.F.R. § 4.115a. The veteran contends that he is entitled to an evaluation in excess of 20 percent for residuals of prostate cancer. In an unsigned statement apparently prepared by his representative in September 2003, it was argued that his urinary frequency and leakage entitle him to a rating of 40 percent. The evidence reveals the veteran underwent a radical retropubic prostatectomy in March 2000, after a biopsy revealed malignant cancer cells and a prostatic specific antigen (PSA) level of 7.71 was found. A nursing note from March 2000 reported the veteran was on a catheter post- surgery. In a December 2000 VA examination, the veteran reported urinating every 2 hours during the day and a minimum of 2 times at night. He denied incontinence although he reported some slight dribbling. He further denied any catheterizations that were intermittent or continuous following his initial surgery. His PSA level was less than 0.04. The veteran reported no urinary tract infections. There were no dilations or drainage procedures. The veteran had retired once the surgery was performed. The examiner noted in his conclusion that the veteran had increased frequency of urination during the day and that he had to limit his activities. In a July 2001 VA examination, the veteran reported urinary frequency every 2 hours during the day and 2 to 3 times at night. He also indicated the presence of incontinence that is usually associated with sneezing or during intercourse. The veteran did not use absorbent pads at this time. He denied recurrent urinary tract infections and frequency of dilation or drainage procedures. The veteran reported that the soilage of his clothing due to urinary leakage was embarrassing and he often had to visit the bathroom frequently due to frequent urination. His PSA level was less than 0.04. Testing revealed the veteran's urine flow rates and voiding residuals were 247 cc volume voided, residual 120 cc in the first filling and 162cc volume voided, and residual 220 cc in the second filling. The examiner diagnosed the veteran with detrusor instability, moderate bladder outlet obstruction and possible drug effect nortriptyline or pseudoephedrine. VA outpatient treatment records from November 2001 to March 2006 indicate the veteran had continuous follow-up treatment for his radical retropubic prostatectomy in March 2000. Specifically from February 2003 to March 2006 the veteran's post operative residuals noted undetectable PSA levels and recurrent bladder neck contracture. VA outpatient records reflect in November 2001, the veteran underwent a cytoscopy with dilation of the urethral stricture where a tight bladder neck contracture was found. An 18 F Foley catheter was placed at this time and subsequently removed on December 5, 2001, after which the veteran was able to void. VA outpatient treatment records also note a year later, in December 2002, the veteran denied dysuria, hematuria or incontinence and the bladder was specifically noted to be continent. VA outpatient treatment records from February 2003 reflect the veteran underwent another cytoscopy with urethral dilation for bladder neck constriction. No tubes or drains were inserted. The veteran was scheduled for a follow up for a laser incision of the bladder neck in May 2003. In May 2003, VA outpatient treatment records reflect the veteran underwent a cytoscopy for bladder neck contracture and was on an 18 FR Foley catheter. He complained of discharge around the catheter but no visible discharge was noted. The catheter was removed 1 week after surgery. VA outpatient treatment records in June 2003 noted the veteran had a cytoscopy in March 2003 and reported the veteran's voiding was the best it had been since his surgery with no significant obstructive symptoms or incontinency reported. A VA outpatient treatment report in July 2003 also noted the veteran was voiding well after surgery for recurrent bladder neck contracture. A September 2003 VA outpatient treatment report also noted the veteran's stream was much improved and even fuller than the last visit. During a VA examination in June 2003, the veteran denied any symptoms of lethargy, weakness, anorexia or weight loss. His day time urination was consistent at 3 to 4 times a day, depending on his consumption. In addition he reported nocturia to be 2 to 3 times a night. The veteran did report incontinence, particularly with sneezing or straining, although he does not use any absorbent pads. He denied any urinary tract infections. He reported he had a Foley catheter for approximately 1 week after he had laser surgery for bladder neck contracture in May 2003. He reported having a total of 3 procedures due to bladder complications. He also reported being retired but indicated he was still unable to drive long distances without having to stop and urinate. The examiner diagnosed the veteran with adenocarcinoma of the prostate with residuals including stress incontinence and frequency of urination. In a February 2004 VA outpatient treatment report the veteran denied having any incontinence except that which was associated with prostate surgery. In May 2004 the veteran was seen at the VA outpatient treatment center for a follow up for management of the bladder neck contracture and prostate cancer. The examiner noted the veteran had a full stream, feels empty post void and displays no straining. He reported an occasional small amount of stress urinary incontinence with sneezing and coughing but he did not use absorbent pads. The examiner noted no dysuria or hematuria. The veteran denied a loss of appetite or weight. In October 2005, the veteran denied any current urinary symptoms. He stated that he had a strong urinary stream and felt like he emptied his bladder completely. He further denied any stress urinary incontinence, abdominal pain, hematuria, urinary tract infections, bone pain or weight loss. A review of the record reflects the veteran's residuals of prostate cancer do not meet the criteria for an evaluation in excess of 20 percent. While occasional stress incontinence is reported with sneezing or straining, the veteran has consistently denied wearing absorbent materials to medical examiners. The Board notes that correspondence apparently prepared by the veteran's representative reflects the use of absorbent materials (at one point claimed to be continuous), but none of the medical evidence confirms such and the veteran has repeatedly denied the use of such to the examiners. Moreover, the Board notes that in correspondence dated December 14, 2001, it was asserted the veteran "now has a continuous Foley Catheter installed for urinary incontinence." However, the medical records reveal the catheter was installed during his stricture surgery in November 2001, and was actually removed on December 5, 2001. Thus, the Board finds the contentions in the correspondence are not credible. Additionally, the medical evidence does not reveal urinary frequency with day time voiding intervals of less than 1 hour, urinary frequency with voiding 5 or more times per night, obstructed voiding with urinary retention requiring intermittent or continuous catheterization or recurrent symptomatic urinary tract infections requiring hospitalization more than 2 times per year or continuous intensive management. In fact, the veteran last reported in October 2005 that he had no urinary symptoms including stress urinary incontinence. In addition, the past catheters were inserted in relation to the surgeries. As such, they represent surgical intervention for dilatation occurring 1 to 2 times per year, which is the criterion for a noncompensable evaluation for obstructive symptoms. Thus, the Board finds that the preponderance of the evidence is against a claim for an evaluation in excess of 20 percent for residuals of prostate cancer. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent for residuals of prostate cancer at any point during the course of the appeal, that doctrine of reasonable doubt is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). In reaching this decision, the Board has considered the issue of whether the veteran's service-connected prostate cancer residuals presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2003); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In this regard, the Board notes that the evidence does not show that the veteran's service-connected condition, in and of itself, interferes markedly with employment (i.e., beyond that contemplated in the assigned rating), warrants frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Therefore, in the absence of such factors, the Board finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER An evaluation in excess of 20 percent for residuals of prostate cancer is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs