Citation Nr: 1007382 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-01 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than August 26, 2004 for the grant of service connection for residuals of prostate cancer status post prostatectomy with history of incisional hernia. 2. Entitlement to an initial disability rating higher than 60 percent for residuals of prostate cancer status post prostatectomy with history of incisional hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1967 to March 1969. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a February 2005 rating decision, the RO granted the Veteran's claims for service connection for prostate cancer, status post radical prostatectomy and assigned an initial noncompensable rating, and erectile dysfunction (secondary to prostate cancer, status post radical prostatectomy) - assigning an effective date of August 26, 2004, the date the Veteran's claim was received, for both conditions. The RO also awarded the Veteran special monthly compensation based on loss of use of a creative organ, also retroactively effective from August 26, 2004, and denied his claim for a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities. In March 2005, the Veteran submitted a notice of disagreement (NOD) with the RO's February 2005 rating decision, providing that he disagreed with his noncompensable initial ratings for both prostate cancer, status post radical prostatectomy and erectile dysfunction. In that letter, he also asserted that he had two surgeries for incisional hernia related to his prostate cancer, status post radical prostatectomy and he made an informal claim for a mental disorder, secondary to these conditions. Following this, the Veteran also asserted in a May 2005 statement, that he disagreed with his effective date. In the September 2005 statement of the case (SOC), the RO continued the Veteran's noncompensable ratings for prostate cancer, status post radical prostatectomy, as well as erectile dysfunction and found that the Veteran was not entitled to an earlier effective date for prostate cancer, status post radical prostatectomy. On his December 2005 VA Form 9, the Veteran expressly provided that he was appealing his noncompensable ratings for prostate cancer, status post radical prostatectomy and erectile dysfunction, as well as the effective date for service connection for his prostate cancer, status post radical prostatectomy. See Fenderson v. West, 12 Vet. App. 119 (1999). He also expressed an informal claim for temporary disability based on individual unemployability (TDIU) with respect to these conditions. However, in a March 2006 rating decision, the RO increased the Veteran's rating for this condition from a noncompensable rating to 60 percent, including service connection for his history of incisional hernia, effective retroactively to August 26, 2004 -the effective date of the prior rating. The RO also recharacterized the Veteran's service-connected erectile dysfunction to include Peyronie's disease and increased his rating from 0 to 20 percent -the highest possible rating for this condition, also effective retroactively to August 26, 2004. In the March 2006 supplemental statement of the case (SSOC), the RO recharacterized the Veteran's prostate cancer, status post radical prostatectomy, as residuals of prostate cancer status post prostatectomy with history of incisional hernia (residuals of prostate cancer) and continued his 60 percent disability rating. In the SSOC, the RO also denied the Veteran's claim for an earlier effective date for this condition. The Veteran has continued to appeal for an even higher rating and an earlier effective date for this condition -which now encompasses his history of incisional hernia. See AB v. Brown, 6 Vet. App. 35 (1993) (it is presumed he is seeking the highest rating allowable, unless he expressly indicates otherwise). The Board notes that RO has not adjudicated the Veteran's claims for service connection for a mental disorder or for TDIU. So the Board does not currently have jurisdiction to consider these additional issues. 38 C.F.R. § 20.200 (2009). Therefore, they are referred to the RO for appropriate development and consideration. FINDINGS OF FACT 1. On August 26, 2004, the RO received the Veteran's claim seeking service connection for prostate cancer, status post radical prostatectomy. 2. In a February 2005 rating decision, the RO granted the Veteran's claim for service connection for prostate cancer status post radical prostatectomy and assigned an initial noncompensable rating retroactively effective from the date of his claim -August 26, 2004; and in a March 2006 rating decision, the RO increased the Veteran's initial disability rating for residuals of prostate cancer to 60 percent, effective August 26, 2004. 3. Prior to August 26, 2004, the Veteran did not file an informal or formal claim relating to his prostate cancer and its residuals. 4. With respect to the Veteran's residuals of prostate cancer status post prostatectomy with history of incisional hernia, voidance dysfunction is predominant in comparison to renal dysfunction, and, the medical evidence does not establish that he has 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. It establishes that the Veteran's hernia is healed with no disability or post- operative wounds with weakening of abdominal wall and indication for a supporting belt. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than August 26, 2004, for the grant of service connection for residuals of prostate cancer status post prostatectomy with history of incisional hernia. 38 U.S.C.A. § 5110 (West Supp. 2005); 38 C.F.R. §§ 3.1, 3.155, 3.159, 3.157, 3.400 (2009). 2. The criteria for an initial disability rating higher than 60 percent for residuals of prostate cancer status post prostatectomy with history of incisional hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.115a, Diagnostic Codes 7518, 7528 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100, et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in September 2004, the RO advised the Veteran of the evidence needed to substantiate his underlying claim for service connection and explained what evidence VA was obligated to obtain or to assist him in obtaining, and what information or evidence he was responsible for providing - keeping in mind that his current claims initially arose in the context of him trying to establish his underlying entitlement to service connection, since granted. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For claims, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). The RO issued that September 2004 VCAA notice letter prior to initially adjudicating the Veteran's claim, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). It equally deserves mentioning that the March 2006 supplemental statement of the case (SSOC) and a more recent letter dated in May 2006 informed him of the downstream disability rating and effective date elements of his claim - keeping in mind that these claims arose in the context of him trying to establish his underlying entitlement to service connection, since granted. His appeal concerns downstream issues -the effective date of the grant of service connection and whether he is entitled to a higher initial disability rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In cases, as here, where an increased-rating claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and the claim was subsequently granted and he has appealed downstream issues, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because its intended purpose has been fulfilled. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Thereafter, once a notice of disagreement (NOD) has been filed, only the notice requirements for a rating decision and statement of the case (SOC) described within 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Appellant, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. And, here, though not technically required, after granting service connection for the underlying condition in February 2005, the RO provided the additional Dingess notice in March and May 2006. So the Veteran has received all required VCAA notice concerning his claim. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, the September 2005 statement of the case (SOC) discussed the requirements for receiving higher initial ratings for the Veteran's disability, including the applicable statutes and regulations. And the RO provided reasons and bases for not assigning a higher initial rating. Moreover, the RO provided further discussion of this when readjudicating the claims in the March 2006 supplemental SOC (SSOC). See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) and Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (indicating that, if VCAA notice was not provided prior to the initial adjudication of the claims or, if provided, was inadequate or incomplete, this timing error can be "cured" by providing any necessary notice and then readjudicating the claims, including in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. That is to say, the timing error in the provision of the notice is rectified and, therefore, ultimately nonprejudicial, i.e., harmless error. As for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, VA medical records, and private medical records. As there is no indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. II. Entitlement to an Effective Date Earlier than August 26, 2004 for Service Connection for Residuals of Prostate Cancer As mentioned, in a February 2005 rating decision the RO granted service connection and assigned an initial noncompensable disability rating for service connection for the Veteran's residuals of prostate cancer, effective retroactively from August 26, 2004, the date the Veteran filed his claim for VA compensation benefits for this condition. He wants an earlier effective date for the grant of service connection. But for the reasons and bases discussed below, there are no grounds for assigning an effective date earlier than August 26, 2004, for his award. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought. An "application" is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2006); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The relevant facts of this case are not in dispute. The Veteran was separated from active duty on March 28, 1969. On August 26, 2004, he filed a claim for service connection for residuals of prostate cancer. In February 2005, the RO granted service connection and assigned an initial noncompensable rating, effective retroactively from the August 26, 2004 claim. There is no legal authority for assigning an earlier effective date. According to 38 U.S.C.A. § 5110(a), the effective date can be no earlier than August 26, 2004, since this is the date of receipt of the Veteran's claim. The Board has reviewed the record but finds neither a formal nor an informal communication which can be construed as a claim for service connection for this condition prior to that date. Indeed, the Veteran acknowledges that he did not submit a claim prior to that date; rather he asserts that, as he filed his claim when he became aware of his entitlement to service connection based on Agent Orange exposure, his filing date should not be held against him and his grant of service connection should be June 2001 -the date of his prostate cancer diagnosis. See his May 2005. While the Board is sympathetic to the Veteran's position. However, the law does not provide for such a basis upon which to assign an effective date. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. For these reasons and bases, the Board finds that the preponderance of the evidence is against an effective date earlier than August 26, 2004 for the grant of service connection for the Veteran's condition. And because the preponderance of the evidence is against the Veteran's claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Hence, the appeal is denied. III. Entitlement to an Initial Disability Rating Higher than 60 percent for Residuals of Prostate Cancer Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20. If two evaluations are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In other words, the Veteran's rating may be "staged" to compensate him for times since the effective date of his award when his disability may have been more severe than at others. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.115b, Diagnostic Code 7528, malignant neoplasms of the genitourinary system are to be evaluated as 100 percent disabling. 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. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e). If there has been no local recurrence of metastasis of the neoplasm, VA rates this condition based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant. The VA rating schedule provides descriptions of various levels of disability in each of the symptom areas of renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. VA rates voiding dysfunction under the rating criteria for urine leakage, urinary frequency, or obstructed voiding based on the nature of the disability in question. 38 C.F.R. § 4.115a. With regard to urine leakage (the specific symptom in relation to voiding dysfunction that is referred to in more detail below), the pertinent criteria indicate that for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, VA assigns a 20 percent rating for changing absorbent material less than 2 times per day. A 40 percent rating requires changing absorbent materials 2 to 4 times per day. A maximum 60 percent rating requires the use of an appliance, or the wearing of absorbent materials which must be changed more than 4 times per day. The applicable criteria for evaluating renal dysfunction provides that a noncompensable (i.e., 0 percent) rating is assigned where there is albumin and casts with a history of acute nephritis; or, hypertension noncompensable under DC 7101. A 30 percent rating reflects albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. VA assigns a 60 percent rating for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. Where there is 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, VA assigns an 80 percent evaluation. A 100 percent rating is assigned for renal dysfunction requiring regular dialysis or precluding 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. As mentioned, the Veteran currently has an initial disability rating of 60 percent, which is the highest allowable rating under § 4.115a for voiding dysfunction and, for example, even higher than the maximum possible ratings for urinary frequency (40 percent), obstructed voiding (30 percent), and urinary tract infection (also 30 percent). So, the only way that he could be entitled to a higher rating is by virtue of renal dysfunction. The medical evidence of record reflects that the Veteran had a radical prostatectomy in June 2001. Records of his follow- up evaluation and treatment show no evidence of a recurrence of the cancer. In providing for the comprehensive disability rating of the Veteran's service-connected prostate cancer and ensuing residuals of that condition following his July 2001 radical prostatectomy procedure, application of 38 C.F.R. § 4.115b, DC 7528, is warranted throughout the process of evaluation and treatment for this condition. The Veteran's October 2005 VA examination report provides that following the Veteran's July 2001 procedure, he started having postoperative urinary retention and had a urinary dilation procedure in 2001. The report further provides that, since then, he has had incontinence with leaking of his urine. It also provides that the Veteran reported using approximately 4 to 5 adult pads per day. The report further provides that in 2004, the Veteran had an inverse sling procedure for his incontinence, and this improved his symptoms. It further provides that since that procedure, the Veteran has gone from having to change his adult pad every hour to having to change his adult pad every 3 hours during the day and 1 to 2 times during the night. The report also provides that the Veteran reported having 2 to 5 nocturnia events per night and that he must get up to urinate 1 to 2 times per night. The report further provides that in 2002, the Veteran underwent hernia repair in October 2002 and that this recurred in October 2003 when he had another repair of the incision with reimplantation of a mesh. The report provides that since then, his hernia has been asymptomatic. The report further provides that the Veteran has no need to catherize himself; no recurrent urinary tract infection, history of renal colic or bladder stones, or acute nephritis; and has not been admitted in the past year for urinary tract disease. It also provides that he Veteran does not have any current treatments for his malignancy and he obtains a PSA approximately every 6 months and has been less than 0.1. The report also provides that the Veteran denied any history of needing any frequent dilation procedures, draining procedures or diet therapy. It also provides a BUN of 20 mg% and serum creatinine of 1.0 mg %; and provides that the Veteran appeared in no acute distress, weighed 186 pounds at 6 feet 4 inches tall, had blood pressure at 122/82, had a 62 pulse rate, and 98.6 temperature. The Board finds that the Veteran's voidance dysfunction is predominant in comparison to renal dysfunction. Moreover, there is no evidence of persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion as required for a higher 80 percent rating. So, the record does not warrant a rating higher than 60 percent under 38 C.F.R. § 4.115a. The Board notes that the Veteran's residuals of prostate cancer include his status post hernia incisions. So, the Board will also consider application of 38 C.F.R. § 4.114, DC 7339, which provides that a noncompensable rating is contemplated for a postoperative ventral hernia that is healed with no disability and no belt indicated. The next higher rating, 20 percent, is warranted for a small, postoperative ventral hernia that is not well supported by a belt under ordinary conditions, or a healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. Here, the competent medical evidence indicates that the Veteran's hernia is healed with no disability or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. So, he is not entitled to additional disability compensation for his status post hernia incisions. Since, as mentioned, the present appeal arises from an initial rating decision that established service connection and assigned an initial disability rating, it is not the present level of disability that is the only concern, rather the entire period since the effective date of the award is to be considered to ensure that consideration is given to the possibility of staging the rating - that is, assigning separate ratings for separate periods of time based on the facts found. See Fenderson, 12 Vet. App. at 125-26. The Veteran, however, has not met the requirements for a rating higher than 60 percent at any time since the effective date of his award, so the Board may not stage his rating because he has been, at most, 60-percent disabled during the entire period at issue. When the RO increased the Veteran's rating from a noncompensable rating to 60 percent, the RO made the rating increase retroactively effective from August 26, 2004, the date of receipt of his claim. So his disability has been compensated at its current 60 percent level since the effective date of his claim. None of the medical evidence suggests he is entitled to a rating higher than 60 percent for this condition. Furthermore, there is nothing in the record to distinguish this case from the cases of numerous other Veterans who are subject to the schedular rating criteria for the same disability. Thus, the Board finds that the 60 percent schedular rating adequately compensates the Veteran for the average impairment of earning capacity due to his service- connected residuals of prostate cancer. He has not been hospitalized frequently for treatment of this condition; instead, the vast majority of his treatment has been on an outpatient basis, not as an inpatient, other than, for example, for his surgery. The 60 percent rating he is receiving is, itself, a concession that his disability causes some significant impairment in his earning capacity. See 38 C.F.R. § 4.1 indicating that, generally, the degrees of disability specified in the rating schedule 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. Therefore, in the absence of factors suggesting that he might be entitled to a higher rating, the Board finds that the criteria are not met for submission of this case for consideration of an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for an effective date earlier than August 26, 2004, for the grant of service connection for residuals of prostate cancer status post prostatectomy with history of incisional hernia is denied. The claim for an initial disability rating higher than 60 percent for residuals of prostate cancer status post prostatectomy with history of incisional hernia is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs