Citation Nr: 1007248 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-39 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE The propriety of a reduction in the rating assigned for residuals of adenocarcinoma of the prostate from 100 percent to 40 percent, effective October 1, 2004. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The Veteran had active military service from December 1965 to December 1967. This appeal to the Board of Veterans' Appeals (Board) originally arose from a rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein a 100 percent rating for adenocarcinoma of the prostate was reduced to 10 percent, effective October 1, 2004. Subsequently, in December 2005, the rating was increased to 40 percent effective from October 1, 2004. The Veteran testified at an April 2005 hearing before RO personnel and at a June 2006 videoconference hearing before the undersigned. Transcripts of the hearings are of record. In a November 2006 decision, the Board denied the Veteran's claim. The Veteran appealed that decision. In December 2008, the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"), vacated the November 2006 Board decision and remanded the case to the Board for readjudication consistent with the Court's decision. FINDINGS OF FACT 1. Improvement in the Veteran's residuals of adenocarcinoma of the prostate sufficient to warrant reduction under the applicable rating criteria was demonstrated as of October 1, 2004. 2. Residuals of adenocarcinoma of the prostate do not necessitate the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. CONCLUSIONS OF LAW 1. The reduction in the rating for residuals of adenocarcinoma of the prostate to 40 percent, effective October 1, 2004, was proper. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.344(c), § 4.115a, and § 4.115b, Diagnostic Code 7528 (2009). 2. The criteria for a rating in excess of 40 percent for residuals of adenocarcinoma of the prostate have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.115a, 4.115b, Diagnostic Code 7528 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits, and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) 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; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (fed. Cir. 2009). Such notice was not provided in this case. Although the appellant received inadequate notice, the record reflects that the purpose of the notice was not frustrated. Vazquez- Flores, 22 Vet. App. at 49. In an April 2005 letter, the RO stated that to establish entitlement to an increased evaluation for his service- connected prostate disability, the evidence must show that his condition "ha[d] worsened enough to warrant the payment of a greater evaluation." The letter also explained that the VA was responsible for (1) requesting records from Federal agencies, (2) assisting in obtaining private records or evidence necessary to support his claim, and (3) providing a medical examination if necessary. The July 2004 and December 2005 rating decisions explained the criteria for the next higher disability rating available for the service connected disability under the applicable diagnostic code. The November 2004 statement of the case provided the appellant with the applicable regulations relating to disability ratings for his service-connected disability, as well as the requirements for an extraschedular rating under 38 C.F.R. § 3.321(b) and stated that, pursuant to 38 C.F.R. § 4.10, disability evaluations center on the ability of the body or system in question to function in daily life, with specific reference to employment. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his increased rating claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Rating of Prostate Disability In an October 2002 rating decision, the RO granted service connection and assigned a 100 percent rating for adenocarcinoma of the prostate, effective from September 23, 2002. In the letter notifying the Veteran of the award, the RO informed him an examination would be scheduled at a future date to evaluate the severity of his condition. A 100 percent rating is warranted for malignant neoplasms of the genitourinary system. Note: Following 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. 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 recurrence or metastasis, rate as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. When there is continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence, a 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. For a rating based on urinary frequency, 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 a rating based on obstructed voiding, a 30 percent rating is warranted where there is urinary retention requiring intermittent or continuous catheterization. In evaluating renal dysfunction, a 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted for 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. 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. Initially, the Board notes that in May 2004, the RO proposed a reduction of the rating for the Veteran's residuals of prostate cancer from 100 percent to 10 percent. Such proposal was carried out in July 2004. Subsequent to the reduction, in April 2005, the RO granted an increased 40 percent rating for the condition, effective from the date of the original reduction. In this case, the 100 percent rating had been in effect since September 2002 and the RO proposed the reduction in May 2004. Because the rating had not continued in effect at the same level for 5 years and the disability in question was likely to improve, the provisions of 38 C.F.R. § 3.344 do not apply. In fact, 38 C.F.R. § 4.115b specifically contemplates that reexamination will be necessary and there are procedural safeguards in place for a reduction. The Veteran was notified of the RO's proposed reduction in May 2004 and the reduction was carried out in July 2004, 60 days later. Thus, the reduction was in accordance with the procedural requirements of 38 C.F.R. § 3.105(e). A VA genitourinary examination was performed in April 2004. Reference was made to a VA clinical note of April 5, 2004 showing that the Veteran's prostate cancer was now nine months status post radiation therapy. His prostate specific antigen (PSA) at that last visit had been 0.16. He reported no complaints of voiding dysfunction. At the personal hearing in April 2005, testimony from the Veteran and his spouse was cumulative to the effect that the Veteran urinated 6 to 7 times per night and almost hourly during the daytime. The Veteran remarked that he did not use absorbent pads; he noted that his doctor had prescribed pills instead of absorbent pads, and that the pills were not working. VA outpatient clinic records reflect the Veteran's treatment during the period from August 2002 to July 2006. In October 2003, and again in April 2004, the Veteran had no complaints of voiding dysfunction. In June 2004, he remarked that he experienced dysuria and nocturia, but indicated that this was not a regular occurrence. An October 2004 treatment entry relates a complaint of nocturia, 5 to 6 times and also daytime frequency, while treatment entries in April 2005 and January 2006 relate complaints of frequency and nocturia 4 to 5 times. At the personal hearing in June 2006, the Veteran and his spouse testified that the Veteran had experienced an increase in urinary frequency. They stated that he now had to urinate about 10 times per day, or about every 1 to 1 1/2 hours, and that he continued having to urinate about 6 to 7 times per night. The Veteran related that a doctor had recommended that he use absorbent pads, but he had not received them yet. He denied that a doctor had recommended the use of an appliance. His wife testified that the Veteran had leakage on a daily basis and had to change his clothes three times per day as a result of inability to control his bladder. On VA examination in January 2008, the Veteran reported six episodes of urinary frequency per day, and more if he has drinks with caffeine. He described at least four episodes of nocturia. He denied any voiding problems. The Veteran stated that if he did not urinate as soon as the urge came upon him, he would have some incontinence problems. He denied the use of absorbent pads; he stated that while he had been told to wear them, he did not. The record establishes that there has been no local recurrence or metastasis of prostate cancer since the Veteran received a course of radiation therapy to treat his prostate cancer. Accordingly, under governing criteria, the residuals of prostate cancer are rated on the basis of whether voiding dysfunction or renal dysfunction is more predominant. The medical evidence demonstrates that voiding dysfunction is the predominant residual in this case. The Board does not dispute the credibility of statements from the Veteran and his spouse about the extensive daytime and nighttime frequency of urination experienced by the Veteran. However, in order to be entitled to assignment of a rating higher than 40 percent on the basis of voiding dysfunction, there must be evidence that the claimant needs to use an appliance or needs to wear absorbent materials that must be changed more than 4 times per day. This simply has not been demonstrated. While the Veteran has reported, both in testimony and during examinations, that he has been advised to wear absorbent pads, he has consistently reported that he does not use them. He repeated that on the January 2008 VA examination. The current 40 percent rating contemplates wearing of absorbent materials which must be changed 2 to 4 times per day. Given that the Veteran has continually reported that he does not use absorbent pads (even if he has been advised to do so), there is no basis for finding that he must change the pads more than 4 times per day as would be necessary for a higher rating. Even if the residuals of prostate cancer are evaluated on the basis of urinary frequency, no more than the currently assigned evaluation is warranted, as a 40 percent evaluation is the highest evaluation provided for urinary frequency under the criteria for rating genitourinary system dysfunctions. For the reasons discussed above, the Board affirms the propriety of the RO's reduction in the rating assigned for residuals of adenocarcinoma of the prostate from 100 to 40 percent, and hence the claim must be denied. 38 C.F.R. § 3.344(c). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER The reduction in the rating assigned for residuals of adenocarcinoma of the prostate from 100 percent to 40 percent is appropriate, and the appeal is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs