Citation Nr: 1004660 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 07-25 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of prostate cancer, to include restoration of a 100 percent rating. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The Veteran served on active duty with the Air Force from July 1970 to June 1974 and with the Navy from May 1976 to July 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, reduced the Veteran's 100 percent rating for residuals of prostate cancer to 10 percent, effective March 1, 2007. In October 2009, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge at the Board's Central Office in Washington, D.C. A transcript of the hearing is of record. FINDINGS OF FACT 1. In an April 2006 rating decision, service connection for prostate cancer was granted with an initial 100 percent assigned, effective September 1, 2005. 2. Upon VA examination in November 2006, the Veteran complained of residuals of prostate cancer including erectile dysfunction and urinary frequency with a daytime interval of two to five hours and awakening to urinate twice per night. 3. In an August 2006 rating decision, the originating agency proposed to reduce the Veteran's rating for prostate cancer to noncompensable based on improvement of the disability; the Veteran was informed of the proposal by a letter dated in August 2006, and was afforded a period of 60 days in which to submit additional evidence. 4. In a December 2006 rating decision, the Veteran's evaluation for residuals of prostate cancer was reduced to 10 percent, effective March 1, 2007, based on improvement of the disability. 5. The evidence of record at the time of the December 2006 rating decision reducing the rating for the Veteran's residuals of prostate cancer shows that the disability had improved. 6. For the period prior to October 28, 2009, the Veteran's residuals of prostate cancer manifested no active cancer and urinary frequency with a daytime interval of two hours; there was no nighttime awakening for voiding, and no functional impairment. 7. For the period beginning October 28, 2009, the Veteran's residuals of prostate cancer do not manifest active cancer; there is urinary frequency with a daytime interval between one and two hours, awakening to void two times a night, and occasional pain during urination. CONCLUSIONS OF LAW 1. The 100 percent rating for residuals of prostate cancer was properly reduced to a 10 percent rating, effective March 1, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 3.951(a), 4.7, 4.97, 4.115a, 4.115b, Diagnostic Code 7528 (2006 & 2009). 2. For the period prior to October 28, 2009, the schedular criteria for a rating in excess of 10 percent for residuals of prostate cancer have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.115a, Diagnostic Code 7528 (2009). 3. For the period beginning October 28, 2009, the schedular criteria for a rating of 20 percent, but not higher, for residuals of prostate cancer have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.115a, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for prostate cancer was granted in an April 2006 rating decision with an initial 100 percent rating assigned, effective September 1, 2005. The 100 percent rating was based on Diagnostic Code 7528 which allows for a total rating for malignant neoplasms of the genitourinary system. The rating decision informed the Veteran that his residual disability would be determined based on the results of a VA examination six months after the completion of his radiation treatment. 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, and the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The reduced rating in this appeal was in effect from September 1, 2005, to March 1, 2007. As the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a),(b), which provide additional regulatory hurdles to rating reductions, do not apply. The provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. The Veteran was provided a rating action in August 2006 proposing to reduce his current evaluation for residuals of prostate cancer to a noncompensable evaluation. A letter accompanying the rating action informed the Veteran that he had 60 days to submit additional evidence and to request a predetermination hearing. Thus, the Veteran was given proper notice and time to respond before the rating for his residuals of prostate cancer was reduced. 38 C.F.R. § 3.105. The Veteran responded to the August 2006 proposal to reduce his rating with a September 2006 letter stating that he had never received notice of a VA examination. A VA contract examination was then provided in November 2006. Based on the results of the examination, the RO reduced the Veteran's rating for residuals of prostate cancer in December 2006 to 10 percent, effective March 1, 2007. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's reduced 10 percent rating was assigned under the provisions of 38 C.F.R. § 4.115a pertaining to urinary frequency. A rating of 10 percent is assigned for a daytime voiding interval between two and three hours, or awakening to void two times per night. A rating of 20 percent is assigned for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A rating of 40 percent is assigned for a daytime voiding interval less than one hour or awakening to void five or more times per night. Although the Veteran disputes the reduction of his disability rating for residuals of prostate cancer, he has not provided such evidence as would show that at the time of the reduction his disability most nearly approximated the criteria associated with a rating in excess of 10 percent. His initial 100 percent rating was assigned under Diagnostic Code 7528 for malignant neoplasms, however, the November 2006 VA contract examiner found that there was no evidence of active cancer. In addition, the Veteran reported a daytime urinary interval between two and five hours and awakening to void twice a night. He also complained of occasional dribbling and stinging while urinating. It is clear that the Veteran's urinary frequency at the time of the December 2006 reduction most nearly approximated the criteria associated with a rating of 10 percent under 38 C.F.R. § 4.115a. The Veteran also reported at the November 2006 rating decision that he experienced urinary incontinence but did not require a pad or other absorbent materials. A minimum rating of 20 percent under the criteria for voiding dysfunction require the wearing of absorbent materials which must be changed less than two times a day. Therefore, a rating of 20 percent was not warranted under 38 C.F.R. § 4.115a for voiding dysfunction and the reduction of the disability evaluation to 10 percent was proper. With respect to the current severity of the Veteran's residuals of prostate cancer, the Board finds that an increased rating of 20 percent is warranted for urinary frequency for the period beginning October 28, 2009. During his October 2009 hearing, the Veteran testified that his urinary frequency had gradually worsened, and during the day he experienced a urinary interval between 90 minutes and two hours. He also awakened to urinate twice every night. The Veteran also testified that he experienced occasional pain and dribbling during urination and some urinary incontinence, although he did not wear absorbent materials. As the Veteran has reported a daytime voiding interval between one and two hours, along with other urinary symptoms such as pain, an increased rating of 20 percent is warranted for residuals of prostate cancer under 38 C.F.R. § 4.115a for the period beginning October 28, 2009. A 20 percent rating is not warranted for the period prior to October 28, 2009, as the Veteran's daytime voiding interval was not between one and two hours and he did not wake to void between three to four times a night. 38 C.F.R. § 4.115a. During an August 2008 VA contract examination, the Veteran reported that he needed to urinate during the day every 2 hours and had no problem at night. In addition, he reported having no urinary incontinence and no functional impairment from his prostate cancer residuals. Therefore, for the period prior to October 28, 2009, the Veteran's residuals of prostate cancer most nearly approximated the criteria associated with the currently assigned 10 percent evaluation. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this period because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three- part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra- schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed.Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's residuals of prostate cancer manifest symptoms such as urinary frequency, stinging, and incontinence that does not require the use of absorbent materials. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Occupational Impairment The Court has recently held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In this case, the record is negative for evidence that the Veteran is unemployable due to his service-connected residuals of prostate cancer. The record does not indicate that he is in receipt of Social Security disability benefits, or that he has been unemployed at any time during the claims period. There is no medical evidence that the Veteran's residuals of prostate cancer have interfered with his employment, and the Veteran has not stated that he has lost any time from work or is unable to perform his duties. Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected residuals of prostate cancer. Duties to Notify and Assist 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, 5126 (West 2002 & Supp. 2009) defined VA's duty to assist a 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, 3.326(a) (2009). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the July 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA contract examinations in response to his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Reduction of the disability evaluation for residuals of prostate cancer from 100 percent to 10 percent, effective March 1, 2007 was proper, and the current residuals of prostate cancer warrant a 20 percent rating for the period beginning October 28, 2009, and to this extent the claim is granted. ____________________________________________ Mary Gallagher Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs