Citation Nr: 1306139 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-12 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Propriety of the reduction of the rating for prostate cancer from 100 percent to noncompensable, effective December 1, 2008. 2. Entitlement to a compensable rating for residuals of prostate cancer from December 1, 2008. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran had active service from August 1965 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an September 2008 rating decision by the Pittsburgh, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. An October 2007 rating decision granted the Veteran service connection for prostate cancer, rated 100 percent under Diagnostic Code 7528, effective July 2007. 2. Following a VA examination in March 2008, by rating decision in June 2008, the RO proposed to reduce the 100 percent rating for residuals of prostate cancer. 3. A September 2008 rating decision implemented the reduction in the rating for residuals of prostate cancer from 100 percent to 0 percent, effective December 1, 2008; at the time, the record showed that the Veteran's prostate cancer was in remission. As of September 2008, reported symptoms consisted of nocturia times one and some slight urge incontinence and slight stress incontinence with sneezing. 4. From December 1, 2008, the Veteran's residuals of prostate cancer were manifested predominantly by voiding dysfunction consisting of daytime voiding at intervals between two and three hours and awakening to void at least two times per night. CONCLUSIONS OF LAW 1. The reduction of the rating for residuals of prostate cancer from 100 percent to noncompensable, effective December 1, 2008, was in accordance with the facts and with governing law. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2002); 38 C.F.R. §§ 3.102, 3.105(e), 3.344(c), 4.115a, 4.115b, Diagnostic Code 7528 (2012). 2. The Veteran's residuals of prostate cancer warrant a rating of 10 percent, but no higher, from December 1, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.115a, 4.115b, Diagnostic Code 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board acknowledges that, in the present case, VCAA notice did not directly address the issue of a rating reduction. However, from the June 2008 pre-determination letter accompanying the rating decision which proposed reduction, and from the March 2009 statement of the case, which included the provisions involving stabilization of ratings, a reasonable person would have understood what he required to substantiate the claim. As such, any notice deficiency has not affected the essential fairness of the adjudication. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination conducted in March 2008 is adequate to evaluate the claims. The examiner physically examined the Veteran and reviewed pertinent diagnostic testing including prostate specific antigen (PSA) test results. He also recorded the Veteran's subjective complaints. A determination was made as to the symptomatology associated with the service-connected residuals of prostate cancer based on physical examination and review of the testing. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed all statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Regulations and Analysis Under 38 C.F.R. § 4.115b, Code 7528, for prostate cancer, a 100 percent rating is assigned following cessation of surgery, chemotherapy, or other therapeutic procedure and shall continue with a mandatory VA examination at the expiration of 6 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, then the cancer is rated based on residuals of voiding dysfunction or renal dysfunction, whichever is the predominant disability. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payment should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Initially, the Board notes that the Veteran's residuals of prostate cancer have been rated based on residuals as voiding dysfunction. As the record does not show that he has renal dysfunction (and he has not alleged otherwise), discussion of a potentially higher rating based on renal dysfunction is not necessary. Under 38 C.F.R. § 4.115a, voiding dysfunction is to be rated as urine leakage, frequency or obstructed voiding. There is no evidence of record to suggest that the Veteran has any obstructed voiding, as such, the Board will not list that rating criteria. A 20 percent evaluation is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent evaluation is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent evaluation is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. In regards to urinary frequency, 38 C.F.R. § 4.115a states that a 10 percent evaluation is warranted for daytime voiding interval between two and three hours; or awakening to void two times per night. A 20 percent evaluation is warranted for daytime voiding interval between one and two hours; or awakening to void three to four times per night. A 40 percent evaluation is warranted for daytime voiding interval less than one hour; or awakening to void five or more times nightly. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In a claim for an increased rating, "staged" ratings may be warranted if the claim involves the initial rating assigned with a grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). On March 2008 VA examination, it was noted that the Veteran's prostate cancer was in remission. Also noted, the Veteran had robotic radical prostatectomy in September 2007. He had no renal dysfunction. He reported nocturia times one and some slight urge incontinence if he did not get to the bathroom in time and some stress incontinence with sneezing. The Veteran was diagnosed with mild stress and urge incontinence secondary to prostate surgery. Additionally, a November 2008 VA treatment record indicates that the Veteran's PSA was less than 0.1. As the prostatectomy was performed in September 2007 and a VA examination was conducted in March 2008, 6 months after the surgery, and as there was no local recurrence of cancer, the RO was required by the Rating Schedule to rate the prostate cancer disability on residuals as voiding dysfunction or renal dysfunction, whichever was the predominant disability. 38 C.F.R. § 4.115b, Code 7528. The pertinent evidence of record demonstrates that the predominant disability associated with the prostate cancer is voiding dysfunction. There is no evidence of record that the Veteran experiences any renal dysfunction related to the residuals of his prostate cancer. The evidence of record up until the time of the September 2008 rating decision which implemented the reduction documents, at most, intermittent complaints of incontinence without any quantification as to the extent of incontinence. In August 2007, the Veteran denied urinary incontinence. At the time of the March 2008 VA examination, the Veteran denied urinary flow problems. There was no dysuria or hesitancy. He had minimal incontinence. He described slight urge incontinence if he did not get to the bathroom in time. There was also some stress incontinence when he sneezed. The pertinent diagnosis was mild stress and urge incontinence. The Board finds the above evidence documents, at best, a noncompensable evaluation based on voiding dysfunction during the pertinent time period. The evidence does not demonstrate that the Veteran has to wear any absorbent materials at all. Furthermore, there is no evidence of the frequency at which the Veteran voids. There is simply no evidence of record dated during the pertinent time period which includes any reference to the Veteran's frequency of voiding. As required by 38 C.F.R. § 4.115b, Code 7528, the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) when it notified the Veteran of its proposal to reduce his rating assigned for residuals of prostate cancer in June 2008. He was also notified of his right to challenge the proposed reduction, and was given an opportunity to present evidence and/or have a hearing. The Veteran was then notified of the final reduction in September 2008, effective December 1, 2008, and the reduction was made effective no sooner than permitted by regulation. For these reasons, the Board finds that the rating reduction was in accordance with the facts of the record and the application of 38 C.F.R. § 3.105(e). Concerning the Veteran's residuals of prostate cancer, determined by the record as being voiding dysfunction, the Veteran's representative maintained in an October 2008 notice of disagreement that the Veteran had daytime voiding at intervals between two and three hours and awakened to void at least two times per night. The statement also indicated that the Veteran wished a rating of no less than 10 percent for his residuals of prostate cancer. The Board notes that various VA treatment records indicate that the Veteran had no incontinence and no nocturia. More specifically, a January 2008 urology note indicates that the Veteran had no incontinence at all and required no pads. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's residuals of prostate cancer warrant a 10 percent disability rating from December 1, 2008. In this regard, the Board notes that the only indication of voiding problems was the reiteration of the 10 percent disability criteria on the October 2008 notice of disagreement, clearly authored by the Veteran's representative. There is no indication in the record of voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day or more frequent voiding than that contemplated by the 10 percent criteria under 38 C.F.R. § 4.115a. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected residuals of prostate cancer, to wit further voiding problems, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER The appeal challenging the reduction of the Veteran's rating for prostate cancer from 100 percent effective December 1, 2008, is denied. A 10 percent, but not higher, rating is granted for the Veteran's residuals of prostate cancer from December 1, 2008, subject to the regulations governing payment of monetary awards. ____________________________________________ G. A. Wasik Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs