Citation Nr: 1312399	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO.  06-12 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an evaluation in excess of 40 percent for residuals of adenocarcinoma of the prostate.


REPRESENTATION

Appellant represented by:	Jaya A. Shurtliff, Attorney at Law


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to June 1969.

This matter initially came before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  In that decision, the RO denied entitlement to an increased evaluation for adenocarcinoma of the prostate, rated 40 percent disabling.

The Board denied the claim in April 2011.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In an August 2012 memorandum decision, the Court vacated the claim on appeal and remanded it to the Board for readjudication consistent with its decision.


FINDINGS OF FACT

1.  The evidence is approximately evenly balanced as to whether the Veteran's residuals of adenocarcinoma of the prostate are manifested by urine leakage, frequency, or obstructed voiding requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.

2.  The preponderance of the most probative evidence is against finding that the Veteran's residuals of adenocarcinoma of the prostate are manifested by constant albuminuria with some edema, or a definite decrease in kidney function, or hypertension with a predominate diastolic pressure of 120 or greater.


CONCLUSION OF LAW

The criteria for an evaluation of 60 percent, but no higher, for residuals of adenocarcinoma of the prostate, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104, 4.115a, 4.115b, Diagnostic Codes 7101, 7528 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in January 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in January 2011.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.

The Board will therefore proceed to the merits of the appeal.

Analysis

Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation 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).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, for the reasons stated below, a uniform 60 percent rating is warranted.

The Veteran's residuals of adenocarcinoma of the prostate are currently evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528.  Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant.  In this case, as shown below, voiding dysfunction is predominant.

Under 38 C.F.R. § 4.115a, a 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day.  A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  A 60 percent rating is also warranted when there is evidence of constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under diagnostic code 7101.  

Pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, a 40 percent rating for hypertension is warranted when diastolic pressure is predominately 120 or more.

The evidence establishes that the Veteran has continual urine leakage requiring the use of absorbent materials.  The dispositive question in this case is how many times per day these materials (i.e., pads) must be changed.  If the Veteran's disability picture more nearly approximates changing pads more than 4 times per day, he is entitled to the maximum 60 percent schedular rating for voiding dysfunction.  In its April 2011 decision, the Board noted conflicting statements as to the number of times per day he must change his pads, and concluded that those indicating 2 to 4 times per day were more credible than those indicating more than 4 times per day.  The Court found the Board's reasons and bases for this conclusion to be inadequate. 

On review of the evidence, the Board will find that the evidence is at least evenly balanced as to whether the Veteran's disability picture more nearly approximates changing pads more than 4 times per day.  He reported occasionally changing up to 4 or 5 times per day on the November 2004 VA examination.  While pharmacy records indicated he was issued an amount of pads equating to the use of 3.2 pads per day, the Veteran explained in his substantive appeal that he purchased most of his pads himself at his local pharmacy because of the higher quality of these pads, minimizing his embarrassment and maximizing his productivity.  Moreover, although the Veteran stated during the May 2010 VA examination that he wore pads 3 to 4 times per day, he indicated in his written statements that the discrepancy was due to the fact that he wore more pads on the 5 days per week that he worked.  

The Board finds the Veteran's explanatory statements to be credible, and the evidence is thus in relative equipoise as to whether his disability disability picture more nearly approximates changing pads more than 4 times per day.  VA law requires that the doubt created by this relative equipoise must be resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b).  The Board therefore finds that the Veteran is entitled to the maximum schedular rating under 38 C.F.R. § 4.115a of 60 percent rating for voiding dysfunction.

The only higher ratings under 38 C.F.R. § 4.115a are for renal dysfunction, but the evidence including the May 2010 VA examination report reflects that the Veteran has not had protein or casts in his urine, serum albumin, renal dysfunction, recurrent urinary tract infection, renal colic, bladder stones, acute nephritis, edema, urinary retention, dysuria, urgency, anorexia, fatigue, lethargy, or weakness, history of catheterization or dilation, clubbing, cyanosis, or peripheral edema, or hypertension with a predominate diastolic reading of 120 or greater.  There is thus no basis for any higher schedular rating under any other potentially applicable diagnostic code.

As to whether an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b)(1), the symptoms presented by the Veteran's residuals of adenocarcinoma of the prostate are fully contemplated by the rating schedule as indicated by the discussion above.  The primary symptoms reported are continual urine leakage requiring changing of absorbent materials more than 4 times per day.  This precise symptom is contemplated under 38 C.F.R. § 4.115a and is the basis for the increased, 60 percent schedular rating that the Board grants in this decision.  There is no evidence that the Veteran's residuals of prostate adenocarcinoma necessitate frequent hospitalization, or that the disability has caused a marked interference with employment.  Thus, there is no basis for referral for an extra-schedular evaluation in this case.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

For the foregoing reasons, a schedular rating of 60 percent, but no higher, is warranted for residuals of adenocarcinoma of the prostate.


ORDER

Entitlement to a rating of 60 percent, but no higher, for residuals of adenocarcinoma of the prostate, is granted, subject to controlling regulations governing the payment of monetary awards.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs