Citation Nr: 0815110 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-30 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased initial rating for a post prostatectomy adenocarcinoma of the prostate evaluated as 100 percent from November 29, 2005 to March 1, 2006 and as 60 percent therefrom. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In a February 2006 rating decision, the RO granted service connection for adenocarcinoma of the prostate status post radical retropubic prostatectomy, and assigned a 100 percent evaluation under 38 C.F.R. § 4.115b Diagnostic Code (DC) 7528, effective November 29, 2005, with a noncompensable evaluation assigned from March 1, 2006. The RO reconsidered the noncompensable evaluation, and in an April 2006 rating decision granted the veteran a 60 percent evaluation, effective March 1, 2006. 38 C.F.R. § 4.115a (2007). Under DC 7528, following the cessation of surgical, X-ray, antineo- plastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. In his substantive appeal, the veteran seems to be arguing that the six month eligibility period under DC 7528 for a 100 percent evaluation should commence from the date of his claim for benefits on November 29, 2005, rather than the date of his surgery, August 25, 2005. This argument is unpersuasive, however, as the note following DC 7528 indicates that the six month eligibility period begins "following" the cessation of surgery. As such, the date the 100 percent rating is applied from is not the date of the claim but rather the cessation of surgery. Thus, the issue on appeal is whether the veteran is entitled to an increased initial rating for a post prostatectomy adenocarcinoma of the prostate evaluated as 100 percent from November 29, 2005 to March 1, 2006 and as 60 percent therefrom. As the 100 percent rating is the highest rating available, the sole question for consideration is whether a rating in excess of 60 percent is justified effective March 1, 2006. FINDING OF FACT Throughout the rating period on appeal, the veteran's prostate disability has been productive of symptoms resulting in a voiding dysfunction requiring the use of the wearing of absorbent materials which must be changed more than 4 times a day; there is no showing of renal dysfunction. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 60 percent, for adenocarcinoma of the prostate status post radical retropubic prostatectomy, effective March 1, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The Board has reviewed all of the evidence in the veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. At the outset, the Board once again notes that the veteran is appealing the initial disability rating assigned for his adenocarcinoma of the prostate status post radical retropubic prostatectomy evaluated as 100 percent from November 29, 2005, to March 1, 2006, and as 60 percent therefrom. As the 100 percent rating is the maximum available award, the issue on appeal is whether the 60 percent rating from March 1, 2006, can be increased. As the claim stems from an initial rating, it requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Adenocarcinoma of the prostate status post radical retropubic prostatectomy is evaluated under 38 C.F.R. § 4.115b, DC 7528 (2007). Under DC 7528, a 100 percent evaluation is warranted for malignant neoplasms of the genitourinary system. A Note following DC 7528 provides that following the cessation of surgical, X-ray, antineo- plastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated under the general rating code of genitourinary system which can include analysis of renal dysfunction and voiding dysfunction. See 38 C.F.R. § 4.115a (2007). In the present case, the six month temporary total rating expired effective March 1, 2006. Additionally, the evidence does not indicate a recurrence of or metastasis. As such the Board will now consider the general rating criteria of 38 C.F.R. § 4.115a (2007). Again the veteran is rated at 60 percent effective March 1, 2006 for his prostate disorder. Under 38 C.F.R. § 4.115a, the maximum available benefit for voiding dysfunction is 60 percent. As such, a higher rating cannot be achieved on this basis. Rather, the only applicable section which provides a potential rating in excess of 60 percent is an evaluation of renal dysfunction. In order to be entitled to the next-higher 80 percent rating based on renal dysfunction, the evidence must show persistent edema and albuminuria with BUN (blood urea nitrogen) 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. The Board has reviewed the evidence of record during the period in question and finds that there is no support for an evaluation in excess of 60 percent for the veteran's service- connected prostate disorder for any portion of the rating period on appeal, as will be discussed below. A VA outpatient treatment record, consisting of blood test results in June 2006 shows urea nitrogen results of 21.3 mg/dl and creatinine results of 0.9 mg/dl. Moreover, a VA examination in April 2006 indicated that the veteran did not have subjective complaints of lethargy, weakness, anorexia, weight loss or gain. Based on the foregoing, the evidence does not warrant the next-higher 80 percent evaluation under 38 C.F.R. § 4.115a (2007). The evidence of record, including the VA examination in April 2006, additionally fails to reflect that the veteran requires regular dialysis as required for a 100 percent rating under renal dysfunction. 38 C.F.R. § 4.115a (2007). Based on the above, an evaluation in excess of 60 percent from March 1, 2006 onward is not warranted for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra- schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's prostate disability claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and in April 2006, he was afforded a formal VA examination. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). ORDER An initial evaluation in excess of 60 percent for adenocarcinoma of the prostate status post radical retropubic prostatectomy, from March 1, 2006, is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs