Citation Nr: 1309687 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-13 649 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Whether the reduction in evaluation of service-connected prostate cancer status post prostatectomy, from 100 to 40 percent, effective August 8, 2008, was proper. 2. Entitlement to an evaluation in excess of 40 percent effective August 8, 2008 and in excess of 60 percent effective May 20, 2009 for service-connected prostate cancer status post prostatectomy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by which the RO reduced the Veteran's disability rating for service-connected prostate cancer status post prostatectomy from 100 to 40 percent effective August 1, 2008. Subsequently, the RO assigned a 60 percent disability rating effective May 20, 2009. In connection with this appeal, it is noted that the Veteran requested and was scheduled for a personal hearing before a Veterans Law Judge at the RO in March 2012. Although the Veteran was notified of the time and date of the hearing by mail sent to his last known address, he failed to appear for that hearing and neither furnished an explanation for his failure to report nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.704(d) (2012), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. FINDINGS OF FACT 1. In a March 2008 rating decision, the RO proposed to reduce the Veteran's rating for prostate cancer, status-post prostatectomy, to 40 percent based on improvement of the disability; the Veteran was informed of the proposal by a letter dated in March 2008 and was afforded a period of 60 days in which to submit additional evidence. 2. In a June 2008 rating decision, the evaluation for prostate cancer, status post prostatectomy, was reduced to 40 percent, effective August 1, 2008, based on improvement of the disability; in September 2010, the RO increased the disability evaluation for prostate cancer, status-post prostatectomy, to 60 percent effective May 20, 2009. 3. The evidence of record at the time of the June 2008 rating decision reducing the rating for the Veteran's residuals of prostate cancer showed that the disability had improved and that prostate cancer was in remission with evidence of frequent daytime and nighttime voiding. 4. The evidence is in relative equipoise as to whether the Veteran has required the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day beginning August 1, 2008; there is no evidence of renal dysfunction at any time during the appeal period. CONCLUSIONS OF LAW 1. The reduction of the rating for prostate cancer, status post prostatectomy, from 100 to 40 percent was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.114a, 4.115b, Diagnostic Code 7528 (2012). 2. The criteria for entitlement to a disability evaluation of 60 percent, but no higher, for the Veteran's service-connected prostate cancer status-post prostatectomy have been met effective August 1, 2008; the criteria for an evaluation in excess of 60 percent for service-connected prostate cancer status-post prostatectomy have not been met at any time since August 1, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes 7528-7527 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Inasmuch as this case involves a rating reduction rather than a rating increase, there are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued 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 expires. 38 C.F.R. § 3.105(e). When the procedures of 38 C.F.R. § 3.105(e) are applicable, VA must comply with those provisions rather than the notice and duty provisions in VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012). See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc) (standards for review of evidence). As discussed below, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. Regarding the increased rating claim herein, in October 2008, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. Any defect as to the timing of the VCAA notice was cured because the RO readjudicated the claim in a March 2011 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, and private treatment records. Additionally, the Veteran was afforded VA medical examinations in furtherance of the claim to include in January 2009. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA findings obtained in this case are adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. The examiner considered all of the pertinent evidence of record as well as the statements of the Veteran. He also conducted a thorough physical examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issue of a higher disability rating for prostate cancer status-post prostatectomy has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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; 38 C.F.R. §§ 3.102, 4.3 (2012) (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion 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. The RO must issue a rating decision proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating decision will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). 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). In this case, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 100 to 40 percent for prostate cancer, status post radical prostatectomy, were properly carried out by the RO. In March 2008, the RO notified the Veteran of a proposed rating reduction, and the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. In April 2008, the Veteran submitted a written statement expressing disagreement with the 40 percent rating by indicating the high frequency of voiding and the number of absorbent pads used on a daily basis. The RO took final action to reduce the disability rating in a June 2008 rating decision, in which the rating was reduced from 100 to 40 percent, effective August 1, 2008. The RO informed the Veteran of this decision by letter dated June 18, 2008. Pursuant to 38 C.F.R. § 3.344(a), (c), if a rating has been in effect for more than 5 years, then rating agencies will handle cases of changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a), (c). In such cases, it is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a), (c). The foregoing provisions apply to ratings that have continued for long periods of time at the same level (5 years or more). They do not apply to disabilities that have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). As discussed above, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him the requisite time periods to request a hearing and respond. By March 2007 rating decision, the RO granted service connection for prostate cancer associated with herbicide exposure and assigned a 100 percent evaluation effective October 6, 2006 under Diagnostic Code 7528. 38 C.F.R. § 4.115b. Diagnostic Code 7528 pertains to malignant neoplasms of the genitourinary system and provides for a 100 percent disability rating. It also provides that 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 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a (2012). In this case, there is no renal dysfunction. There is, however, voiding dysfunction. Voiding dysfunction is rated under urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence is rated as follows: A 60 percent evaluation is assigned with required use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent evaluation is assigned when wearing of absorbent materials that must be changes two to four times a day is required. A 20 percent evaluation is assigned with wearing of absorbent materials that must be changes less than two times a day is required. Id. As to urinary frequency, a 40 percent evaluation is assigned for a daytime voiding interval of less than one hour or awakening to void five or more times a night. A 20 percent evaluation is assigned for a daytime voiding interval that is between one and two hours or awakening to void three to four times a night. A 10 percent evaluation is assigned for a daytime voiding interval that is between two and three hours or awakening to void twice a night. Id. The Board will not discuss the criteria for rating obstructed voiding, as this disability manifestation is not present herein. On December 2007 fee-basis examination, the examiner noted that the Veteran's prostate cancer had been in full remission for 11 months with "no residual." The Veteran reported voiding 20 times during the day at 30 minute intervals and three times at night at intervals of two to three hours. He had problems starting urination and urine flow was hesitant. There was urinary incontinence that did not require a pad or any absorbent material. The Veteran did not require an appliance. The residuals of prostate cancer, according to the examiner, were incontinence and erectile dysfunction. In March 2008, the RO proposed to reduce the Veteran's prostate disability rating to 40 percent. The Veteran was sent notice of the proposed reduction that month. He was given 60 days in which to submit evidence and argument in the event that he disagreed with the proposed reduction or to request a hearing. In an April 2008 written statement, the Veteran indicated that he urinated 20 times daily and approximately three times a night. He further stated that he used two or three large pads a night, one large pad in the morning, and six or seven smaller pads during the day. He indicated that his urination was hesitant and not necessarily complete. As stated, the reduction in the percentage evaluation was made via June 2008 rating decision effective on August 1, 2008. Because the evaluation had been in effect for less than five years, compliance with the provisions of 38 C.F.R. § 3.344(a) and (b) is not required. Improvement in symptomatology will warrant a reduction in rating. 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the evidence available to the RO at the time the reduction was effectuated must be considered, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). As clear from the foregoing recitation of the evidence, the RO proposed a reduction in the 100 rating for prostate cancer only after receiving information that it had been in remission for almost a year. Thus, while there have been symptoms such as frequent voiding and some instances of leakage, the overall disability picture is not one of active prostate cancer, without which a 100 percent disability rating is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7528. In summary, the record demonstrates that the procedural requirements for a reduction in rating have been met as specified under the provisions of 38 C.F.R. § 3.105(e), and the preponderance of the competent findings substantiates that the reduction in rating from 100 to 40 percent for prostate cancer status post prostatectomy was proper. The medical evidence on file at the time of the RO's decision to reduce the rating corresponds to this determination. Specifically, the RO determined that absorbent materials had to be changed two to four times a day and/or that daytime urinary frequency was more than once an hour. As such, the RO determined that under the criteria for urinary frequency and voiding dysfunction a 40 percent evaluation was warranted. According to the December 2007 examination report, the Veteran did not require any pads or absorbent materials but had incontinence and very frequent daytime voiding. Under no circumstance is a 100 percent evaluation available for increased urinary frequency or voiding dysfunction. Therefore, the appeal for restoration of a 100 percent rating for those specific disorders must be denied. A 100 percent evaluation is available for renal dysfunction, but the record does not indicate and the Veteran does not assert that he suffers from renal dysfunction. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit-of- the- doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected prostate cancer status-post prostatectomy has been rated 40 percent disabling effective August 1, 2008 and 60 percent effective May 20, 2009 by the RO under the provisions of Diagnostic Code 7528-7527. 38 C.F.R. § 4.115b. Diagnostic Code 7528 pertains to malignant neoplasms of the genitourinary system and provides for a 100 percent disability rating. It also provides that 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 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a (2012). In this case, there is no renal dysfunction. There is, however, voiding dysfunction. Voiding dysfunction is rated under urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence is rated as follows: A 60 percent evaluation is assigned with required use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent evaluation is assigned when wearing of absorbent materials that must be changes two to four times a day is required. A 20 percent evaluation is assigned with wearing of absorbent materials that must be changes less than two times a day is required. Id. As to urinary frequency, a 40 percent evaluation is assigned for a daytime voiding interval of less than one hour or awakening to void five or more times a night. A 20 percent evaluation is assigned for a daytime voiding interval that is between one and two hours or awakening to void three to four times a night. A 10 percent evaluation is assigned for a daytime voiding interval that is between two and three hours or awakening to void twice a night. Id. For obstructed voiding with urinary retention requiring intermittent or continuous catheterization, a 30 percent rating is warranted. With marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post void residuals greater than 150 cc; uroflowmetry markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every 2 to 3 months; a 10 percent evaluation is warranted. Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year, a noncompensable evaluation is warranted. Id. Under 38 C.F.R. § 4.115b, Diagnostic Code 7527 infections, hypertrophy, postoperative residuals, and injury residuals of the prostate gland are rated as voiding dysfunction or urinary tract infection, whichever is predominant. Recurrent symptomatic urinary tract infection requiring drainage/frequent hospitalization (greater than 2 times per year), and/or requiring continuous intensive management warrants a 30 percent evaluation. Urinary tract infection requiring long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent evaluation. 38 C.F.R. § 4.115a. On December 2007 fee-basis examination, the examiner noted that the Veteran's prostate cancer had been in full remission for 11 months. The Veteran reported voiding 20 times during the day at 30 minute intervals and three times at night as intervals of two to three hours. He had problems starting urination and urine flow was hesitant. There was urinary incontinence that did not require a pad or any absorbent material. The Veteran did not require an appliance. The residuals of prostate cancer, according to the examiner, were incontinence and erectile dysfunction. In an April 2008 written statement, the Veteran indicated that he urinated 20 times daily and approximately three times a night. He further stated that he used two or three large pads a night, one large pad in the morning, and six or seven smaller pads during the day. He indicated that his urination was hesitant and not necessarily complete. An April 2008 VA progress note indicated that the Veteran was going through two to three mini pads a day due to urinary incontinence. Another VA progress note dated that month indicated that the Veteran was using two or three drip collectors a day. A September 2008 VA progress note indicated that the Veteran used seven or eight drip collectors a day and three pads at night. Apparently, this represented an increase since his last visit for VA treatment. On January 2009 fee-basis examination, the Veteran indicated that he urinated 10 times a day and three times at night. Incontinence necessitated as many as 10 pads a day. The Veteran did not require appliances. The diagnosis was of prostate cancer, status-post prostatectomy, and urinary incontinence. A January 2009 VA progress note indicated that the Veteran voided 10 times a day and three times at night with post micturition dribble. There were no urinary tract infections. An April 2009 VA progress note indicated that the Veteran went through seven or eight drip collectors a day and three pads at night. Similar information is contained in a May 2009 VA progress note. As apparent from the foregoing, urinary tract infections and obstructed voiding need not be considered at any time during the appeal period because no such manifestations are apparent from the record. Similarly, renal dysfunction will not be discussed because it is not shown to be present. As to urinary frequency, 40 percent is the highest rating available. Thus, the Board must determine whether the Veteran's disability picture warrants an evaluation of 60 percent under the provisions for urine leakage for the period between August 1, 2008 and May 19, 2009. The evidence is this regard is equivocal. VA progress notes dated during this period show that absorbent materials were changed four or less times a day, corresponding to a 40 percent rating under the provisions related to urine leakage. However, the Veteran's April 2008 written statement reflects the use of six or seven pads a day, and September 2008 and February 2009 VA records reflect the need for seven or eight drip collectors a day and three pads a night. The Veteran's written statement coupled with close-in-time corroborative medical records reflecting that absorbent materials had to be changed more than four times a day militate in favor of a finding that a 60 percent evaluation is warranted for urine leakage for the period between August 1, 2008 and May 19, 2009. 38 C.F.R. § 4.115a; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, supra. The Board observes that there is no means by which an evaluation in excess of 60 percent can be assigned at any time during the appeal period, as the potentially applicable provisions do not allow for an evaluation in excess of 60 percent. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528-7527; see also Hart, supra. The Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record fails to show that the Veteran is unemployable. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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. In this case, an extraschedular rating need not be considered. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected prostate cancer status-post prostatectomy is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for voiding dysfunction and specifically urine leakage shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the frequent necessity of changing absorbent materials is taken into account under the provisions related to urine leakage. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant an even more favorable decision. (CONTINUED ON NEXT PAGE) ORDER The reduction in the evaluation for prostate cancer status post radical prostatectomy from 100 to 40 percent effective August May 1, 2008 was proper. An evaluation of 60 percent for service-connected prostate cancer status-post prostatectomy for the period from August 1, 2008 to May 19, 2009 is granted subject to the law and regulations governing the payment of veterans' benefits. An evaluation in excess of 60 percent for service-connected prostate cancer status-post prostatectomy is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs