Citation Nr: 1303348 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-20 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable disability rating after April 30, 2002, in excess of 10 percent after February 25, 2005, in excess of 20 percent after October 27, 2008, and in excess of 40 percent after March 9, 2012, for service-connected residuals of cervical cancer to include urinary dysfunction. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from February 1994 to June 1996. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran disagreed with the evaluations the RO assigned to her service-connected residuals of cervical cancer to include urinary dysfunction and perfected an appeal. The Veteran testified at an August 2011 hearing at the Central Office in Washington, D.C., before a Veterans Law Judge (VLJ). A transcript of that hearing is included in the Veteran's VA claims folder. The VLJ issued a February 2012 decision and remanded the claim on appeal for further development. Subsequently, the VLJ left the Board. In a September 2012 written submission, the Veteran chose not to appear at a new hearing before a new ALJ. In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder, which were considered by the AOJ in the April 2012 supplemental statement of the case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Clarification of issue on appeal The Veteran's original claim for service connection for cervical cancer was received by the RO on October 12, 2001. After initially denying her claim, the RO granted service connection for cervical cancer in a December 2004 rating decision that evaluated the disability as 100 percent disabling from the date of the claim, October 12, 2001, to April 29, 2002, and noncompensable thereafter. In a February 2005 submission, the Veteran claimed certain secondary conditions to the cervical cancer including bladder problems. The RO appears to have treated the February 2005 submission as a notice of disagreement (NOD) with the disability rating provided in the December 2004 rating decision. In a September 2006 rating decision, the RO evaluated the service-connected "cervical cancer with residuals of urinary dysfunction" as 10 percent disabling using the disability rating criteria of 38 C.F.R. §§ 4.115b and 4.116, Diagnostic Codes 7542 and 7627, respectively. Under 38 C.F.R. § 4.27, residuals of diseases will not be cited without reference to the basic disease. In this case, the RO designated and cited to the basic disease as cervical cancer which was rated as 100 percent disabling under 38 C.F.R. § 4.116, Diagnostic Code 7627, and the residual of urinary dysfunction that was rated under 38 C.F.R. § 4.115b, Diagnostic Code 7542. The RO thus treated the February 2005 submission as a NOD to the disability rating and not a new claim for secondary service connection. In other words, the claim was for an increased initial disability rating for the service-connected residuals of cervical cancer to include urinary dysfunction. A Veteran perfects an appeal with at timely filed NOD and a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.201 and 20.202 (2012). In this case, the Veteran's original claim was received by VA on October 12, 2001. The RO notified the Veteran of a March 2002 rating decision denying her claim for service connection for cervical cancer by letter dated April 2, 2002. The Veteran submitted a NOD received by VA on March 27, 2003, well within the 1-year period provided for receipt of a NOD. The RO issued a September 2003 statement of the case (SOC) and the Veteran submitted a VA-9 substantive appeal received by VA in October 2003. Thus, the issue of service connection was preserved for appeal. Service connection was granted in the December 2004 rating decision and the RO received the Veteran's contention that she had bladder problems that were secondary to her service-connected cervical cancer in February 2005. The February 2005 submission in response to the December 2004 rating decision is also within the 1-year provided for a NOD. Review of the record supports the RO's treatment of the February 2005 submission as a NOD regarding the noncompensable evaluation. The Veteran's February 2005 statement can be fairly read that she suffered from bladder symptoms attributable to the service-connected cervical cancer and that she was entitled to compensation for them. In liberally construing the Veteran's February 2005 submission, the Board finds that it is a NOD to the evaluation provided in the December 2004 rating decision. In providing an effective date for the increased rating claim, however, the RO treated the February 2005 submission as a new claim when, as demonstrated above, the record shows that the Veteran's submissions were timely from the date of her original claim for service connection. The RO provided a 10 percent rating for urinary dysfunction effective February 25, 2005, the date the February submission was received by VA. Regulations provide that an effective date of an evaluation shall be the date when an original claim was received, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2012). In this case, the Veteran's initial claim was received on October 12, 2001. The Veteran's disability was evaluated as 100 percent disabling beginning the date of the claim, and then evaluated as zero percent disabling effective April 30, 2002. The date for entitlement to an increased evaluation arose on April 30, 2002. Thus, the Board finds that the issue under consideration is entitlement to a higher disability rating from April 30, 2002, notwithstanding the RO's finding that the effective date of an increased disability rating was February 25, 2005. FINDINGS OF FACT 1. The Veteran has had urinary dysfunction symptoms since her treatment for cervical cancer that began in September 2001. 2. Between April 30, 2002, and October 26, 2008, the Veteran had urine leakage that required the use of pads to be changed more 1 to 2 times per day and did not require the use of an appliance. 3. In August 2006, the Veteran had frequent urination of at least six times per day at intervals of three hours and at least two times at night at intervals of four hours. 4. In October 2008, the Veteran had frequent urination of at least six times per day at intervals of three hours and at least two times at night at intervals of four hours and had urinary incontinence that required use of a pad one time per day and did not require use of an appliance. 5. In March 2012, the Veteran had frequent urination of every 1-to-2 hours during the daytime and awakening every 2 hours at night; experienced leakage if she coughed, sneezed, or laughed; and required use of an absorbent pad changed 2-4 times per day without use of an appliance. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating and no higher from April 30, 2002, to October 26, 2008, for urinary dysfunction residuals of service-connected cervical cancer have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b and 4.116, Diagnostic Codes 7627 and 7542 (2012). 2. The criteria for a disability rating in excess of 20 percent from October 27, 2008, to March 8, 2012, for urinary dysfunction residuals of service-connected cervical cancer have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b and 4.116, Diagnostic Codes 7627 and 7542 (2012). 3. The criteria for a disability rating in excess of 40 percent from March 9, 2012, for urinary dysfunction residuals of service-connected cervical cancer have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b and 4.116, Diagnostic Codes 7627 and 7542 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks a compensable disability rating after April 30, 2002, in excess of 10 percent after February 25, 2005, in excess of 20 percent after October 27, 2008, and in excess of 40 percent after March 9, 2012, for service-connected residuals of cervical cancer to include urinary dysfunction. The Board will first address preliminary matters. Compliance with remand instructions is neither optional nor discretionary and where the remand orders of the Board are not satisfied, the Board errs as a matter of law when it fails to ensure substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet.App. 141, 146-47 (1999). As noted, the Board remanded the Veteran's claim in February 2012 for VA to obtain VA treatment records and for a VA medical examination to determine the current nature and severity of the Veteran's service-connected cervical cancer with residuals of urinary dysfunction. The record shows that VA obtained and considered treatment records contained in the Veteran's Virtual VA claims folder. The record also includes a report of a March 2012 VA examiner who reported the current nature and extent of the Veteran's service-connected cervical cancer with residuals of urinary dysfunction. For those reasons, the Board finds that VA substantially complied with the Board's February 2012 remand. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The Board has found that that the Veteran's claim arises from disagreement with the initial disability rating. 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); Goodwin v. Peake, 22 Vet.App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of notices provided by the RO. Shinseki v. Sanders, 556 U.S. 396 (2009) (burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the Veteran has received all essential notice in a letters dated February 2006 and September 2008 and she has had a meaningful opportunity to participate in the development of her claim. Conway v. Principi, 252 F.3d 1369 (2004). VA has obtained the Veteran's service treatment records, VA treatment records and private treatment records as identified by the Veteran. In addition, the Veteran has been provided VA medical examinations pertaining to her urinary residuals of cervical cancer in August 2005, August 2006, October 2008 and March 2012. As discussed in more detail below, the medical evidence provides sufficient information to allow adjudication of the Veteran's claim. The Veteran testified at an August 2011 Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. The Veteran has waived her right to a new hearing before the undersigned VLJ. The transcript of the hearing shows that the VLJ informed the Veteran of the issue on appeal and clarified the Veteran's testimony as it related to rating criteria. See hearing transcript at pages 2 and 6, respectively. The Veteran has not contended that VA failed to comply with the requirements of 38 C.F.R. § 3.103(c)(2), and she has not contended that she was prejudiced in any way as a result of the hearing. The Board finds that 38 C.F.R. § 3.103(c)(2) has been satisfied. The Veteran contends that she is entitled to greater disability ratings than she has received from VA. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). The Veteran's service-connected urinary residuals of cervical cancer were evaluated as 100 percent disabling for active cervical cancer from October 12, 2001, until April 29, 2002. From April 30, 2002 to February 24, 2005, the Veteran's urinary residuals of cervical cancer were evaluated as noncompensable. From February 25, 2005 to October 26, 2008, the residuals were evaluated as 10 percent disabling. From October 27, 2008, to March 8, 2012, the residuals were evaluated as 20 percent disabling. From March 9, 2012, the residuals were evaluated as 40 percent disabling. The RO used the criteria of 38 C.F.R. § 4.116, Diagnostic Code 7627 [Malignant neoplasms of gynecological system or breast] which provides a 100 percent disability rating. The note to Diagnostic Code 7627 provides the following: A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. The Veteran's residuals were evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7542 [Neurogenic bladder: Rate as voiding dysfunction]. Voiding dysfunction rating criteria are found at 38 C.F.R. § 4.115a. The criteria direct the rating official to "rate particular condition as urine leakage, frequency, or obstructed voiding." Urine leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day results in a 20 percent disability rating. Urine leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day results in a 40 percent disability rating. Urine leakage requiring the wearing of absorbent materials which must be changed more than 4 times per day results in a maximum 60 percent disability rating. Urinary frequency of daytime voiding interval between two and three hours, or; awakening to void two times per night results in a 10 percent disability rating. Urinary frequency of daytime voiding interval between one and two hours, or; awakening to void three to four times per night results in a 20 percent disability rating. Urinary frequency of daytime voiding interval less than one hour, or; awakening to void five or more times per night results in a maximum 40 percent disability rating. Obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc; 2. Uroflometry; markedly diminished peak flow rate (less than 10 cc/sec.); 3. Recurrent urinary tract infections secondary to obstruction; 4. Stricture disease requiring periodic dilation every 2 to 3 months, results in a 10 percent disability rating. Urinary retention requiring intermittent or continuous catheterization results in a maximum 30 percent disability rating. The Veteran's service-connected cervical cancer residuals were rated in the April 2012 rating decision under the rating criteria of urine leakage and urinary frequency. Medical evidence in the record includes a January 2004 gynecological treatment note that reported a diagnosis of moderate dysplasia and stage IIB cervical cancer, status post radiation and chemotherapy under surveillance. No residuals involving urinary or other disorders were described. An August 2006 examination report by a QTC physician reflects that the Veteran had completed radiation and chemotherapy treatment in September 2001 and that she stated she was experiencing residuals that were secondary to her cancer "such as frequent urination." The examiner noted that the symptoms had begun in 2001 after her treatments ceased and the examiner reported urinary frequency symptoms. An October 2008 VA examination report states that the Veteran's urinary dysfunction began in 2002 and the examiner reported urinary frequency problems, slow urine stream and urinary incontinence requiring absorbent pads changed one time per day. Finally, the March 2012 VA examiner noted urinary dysfunction symptoms that began in 2001 and involved urine leakage, frequent urination and obstructed voiding symptoms. No other type of residual was reported by medical examiners. The Veteran has not indicated that different rating criteria should be applied to her diagnosed urinary residuals. Because the medical evidence establishes the Veteran's cervical cancer residuals primarily involve urinary dysfunction, the Board finds that it is most appropriately rated under the criteria described above. As noted briefly above, the August 2006 examination was the first examination to describe the nature of the Veteran's urinary dysfunction residuals. The August 2006 examiner reported that the "during the day [the Veteran] urinates 6 times at intervals of 3 hours and during the night she urinates 2 times at intervals of 4 hours." The examiner further noted that the Veteran complained that she had recurring urinary tract infections during 2001 and 2002. The examiner noted that "no leakage history was given by the Veteran, although her urination frequency has increased since the chemotherapy and radiation treatments." The Veteran provided an August 2007 statement indicating that she "urinate[d] six times a day at intervals of three hours," and "so, during the three hours, I urinate 6 times." The October 2008 VA examination report notes that the Veteran's condition had existed since 2002 and that "during the day [the Veteran] urinates 6 times at intervals of every 3 hours and during the night she urinates 2 times at intervals of every 3 hours." The examiner further noted that the Veteran said she had "problems starting urination and the urine flow is weak and hesitant," and that the Veteran has "urinary incontinence which requires a pad as often as 1 time per day," but did not require use of an appliance. The examiner noted that the residuals of cervical cancer were incontinence, dysuria, weak and hesitant urinary stream and urethral irritation. The March 2012 examiner reported that the Veteran noticed increased urination without leakage in 2002. The Veteran also first noticed stress incontinence in July 2010 with leakage "if she coughs/sneezes/laughing or light jog when bladder is full." The examiner noted that the Veteran reported an increase in urination frequency with urination every 1-2 hours since July 2010. The examiner reported that the Veteran has urine leakage that requires absorbent material which must be changed 2 to 4 times per day, but did not require the use of an appliance. The Veteran reported an increased urinary frequency of daytime voiding interval between 1 and 2 hours, and nighttime awakening to void 2 times per night. The Veteran also reported obstructive voiding symptoms of hesitancy, but it was not described as marked hesitancy. The Veteran currently receives a 40 percent disability rating, the maximum rating under the criteria for urinary frequency and in excess of the maximum provided for marked obstructive voiding symptoms. Thus, any disability rating in excess of 40 percent would be provided under the criteria for urinary leakage and evidence of urine leakage requiring the wearing of absorbent materials which must be changed more than 4 times per day results in a maximum 60 percent disability rating. The March 2012 VA examiner reported the first evidence of wearing of absorbent materials which must be changed 2 to 4 times per day, but there is no evidence the number of changes exceeded 4 times per day. The Veteran testified that she used pads throughout the day and changed them 3 to 4 times per day. See hearing transcript at page 3. Thus, the evidence does not meet the criteria for a disability rating in excess of 40 percent. In a March 2009 rating decision, the RO provided a 20 percent disability rating effective from October 27, 2008, to March 8, 2012. The Veteran was examined on October 28, 2008, by the VA examiner who noted that "during the day [the Veteran] urinates 6 times at intervals of every 3 hours and during the night she urinates 2 times at intervals of every 3 hours;" had "problems starting urination and the urine flow is weak and hesitant;" and had "urinary incontinence which requires a pad as often as 1 time per day," but did not require use of an appliance. A higher 40 percent disability rating requires proof showing use of absorbent material that must be changed 2 to 4 times per day; daytime voiding interval less than one hour or awakening to void five or more times per night. A 30 percent disability rating is provided for urinary retention requiring intermittent or continuous catheterization. There is no evidence that the Veteran used absorbent pads that were changed 2 to 4 times per day during the period under consideration, and there is no evidence that she had urination frequency of daytime intervals of less than 1 hour or awakening to void 5 or more times per night. Finally, there is no evidence that she had urinary retention requiring catheterization. Thus, the criteria for a disability rating in excess of 20 percent from October 27, 2008, to March 8, 2012, were not met. The March 2009 rating decision also provided an evaluation of 10 percent disability for urinary dysfunction residuals of service-connected cervical cancer effective from February 25, 2005, to October 26, 2008. A higher 20 percent disability rating is provided with proof of urine leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day; urinary frequency of daytime voiding interval between one and two hours, or; awakening to void three to four times per night. An August 2005 VA examination report states that the Veteran had incontinence that did not require the use of pads or an appliance; the examiner did not state the frequency of urination. An August 2006 VA examiner reported that the Veteran said she urinates 6 times at intervals of every 3 hours and during the night she urinates 2 times at intervals of every 3 hours and also noted that the Veteran did not have incontinence. In addition, the evidence that the Veteran urinated an average of 6 times at intervals of every 3 hours during the day and two times during the night does not meet the criteria for a 20 percent disability rating for the period from February 25, 2005, to October 26, 2008. The Board notes that the Veteran's statement included in her August 2007 notice of disagreement that she urinated 6 times in a three hour interval is in contrast to the report of two separate VA examiners that she urinated once during a three hour interval 6 times per day. The Veteran did not indicate at her hearing that she urinated with such frequency and she has not reiterated the statement since August 2007. The Board finds that the statement is inconsistent with other evidence of the record and is not as probative of the consistent reports made by the VA examiners. Finally, the March 2009 rating decision provided a noncompensable or zero percent disability rating for urinary dysfunction effective from April 30, 2002, to February 24, 2005. The Veteran testified at the August 2011 hearing that prior to February 2005, she started using pads sometime in the end of 2001 or beginning of 2002. See hearing transcript at page 5. The Veteran also testified that she used 1 to 2 pads per day during that time. As noted above, urine leakage that requires the wearing of absorbent materials which must be changed less than 2 times per day results in a 20 percent disability rating. The Veteran's testimony is, however, in contrast to the VA medical examiner's reports of August 2005 and August 2006 which both state that the Veteran did not use absorbent pads. The examiners, however, reported different results in that the August 2005 examiner reported the Veteran had incontinence and the August 2006 examiner reported that the Veteran did not have incontinence. The Board notes that incontinence is a symptom clearly within the Veteran's capability to describe; a lay witness statement regarding whether she did or did not have incontinence is competent. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The issue of credibility is crucial to the Board's finding and in this case, the Board does not have any evidence that the Veteran is not credible in describing her use of pads to control incontinence during the period prior to February 2005 and beyond. For those reasons, the Board finds that the Veteran's testimony under oath satisfies the 20 percent rating criterion that she used absorbent material from 2001 through October 26, 2008. For the reasons stated above, the Board finds that a disability rating of 20 percent for urinary dysfunction residuals of service-connected cervical cancer is warranted for the period from April 30, 2002, to October 26, 2008. In analyzing the evidence, the Board also finds that the evidence does not support a higher disability rating during the period of April 30, 2002, to October 26, 2008. There is no evidence that pads were changed a frequency more than 2 to 4 times per day and the urinary frequency described by the Veteran for the period do not meet the criteria for a disability rating in excess of 20 percent for the period of April 30, 2002, to October 26, 2008. In addition, as discussed above, from October 27, 2008, to the present, the evidence does not satisfy a disability rating in excess of 40 percent under the criteria for urine leakage. The United States Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. There is no showing of an exceptional disability picture in this case and the regular schedular standards, as discussed above, contemplate the symptomatology shown by the evidence in this case. The Veteran was not hospitalized for her urinary dysfunction residuals and there is no evidence that it impacts her employability. Accordingly, referral for consideration of an extraschedular rating is not warranted. By the same token, in the absence of any evidence or lay suggestion that the disability at issue precludes the Veteran from securing or following a substantially gainful occupation, the Board finds that the claim at issue does not encompass a claim for a total disability rating based upon individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a disability rating of 20 percent, and no higher, for urinary dysfunction residuals of service-connected cervical cancer is granted for the period from April 30, 2002, to October 26, 2008, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 20 percent for urinary dysfunction residuals of service-connected cervical cancer is denied for the period from October 27, 2008, to March 8, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 40 percent for urinary dysfunction residuals of service-connected cervical cancer is denied for the period from March 9, 2012. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs