Citation Nr: 1313909 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-15 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating higher than 10 percent since October 1, 2008, for residuals of prostate cancer, to include the issue of whether the reduction of the disability rating from 100 percent, effective October 1, 2008, was proper. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active duty service from September 1966 to September 1969, including combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In April 2007 the Veteran was diagnosed with prostate cancer, and in June 2007 he underwent a radical perineal prostatectomy. 2. In a rating decision in June 2007, the Veteran was granted service connection for prostate cancer and assigned a 100 percent rating effective April 20, 2007. 3. In March, 2008, the Veteran was accorded a VA genitourinary examination to ascertain the status of his service-connected prostate cancer disability, which found no malignancies. 4. In a rating decision in April 2008, the RO notified the Veteran of a proposed reduction in rating for his service-connected prostate cancer disability from 100 percent to 10 percent; and in a rating decision in July 2008, the RO reduced the rating for the Veteran's service-connected prostate cancer disability from 100 percent to 10 percent, effective October 1, 2008. 5. The Veteran's prostate cancer residuals have consisted of voiding dysfunction reflected by leakage, urinary incontinence, and stress incontinence; and have required the Veteran to wear absorbent materials changed less than twice per day since the October 1, 2008, date of the rating reduction. CONCLUSIONS OF LAW 1. The July 2008 rating decision, which reduced the Veteran's prostate cancer rating from 100 percent effective October 1, 2008, was appropriate. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2012). 2. The criteria for a rating of 20 percent, but no higher, for prostate cancer residuals beginning October 1, 2008, are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the issue(s) on appeal, including apprising the Veteran of the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements in this case were accomplished in letters dated in April and September 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Additionally, the Veteran was assisted in the development of his appeal. All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the issues resolved in this decision has been obtained. The Veteran's VA treatment records have been obtained. In addition, he has been accorded multiple VA examinations and was afforded an opportunity to give testimony before the Board. He did not elect to do so, and has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to assist the Veteran's in his appeal, and no further assistance to develop evidence is required. The Board will therefore review the merits of the Veteran's claim regarding the rating for his service-connected prostate cancer disability, de novo, without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis The Veteran contends that the RO erred in reducing his prostate cancer rating from 100 to 10 percent, effective October 1, 2008. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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. For those evaluations that have been in effect for five years or more, the RO is to ensure the greatest degree of stability of disability evaluations possible. This means that the ratings for those illnesses or disabilities subject to temporary or episodic improvement are not to be reduced on the results of any one examination, except in those cases where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a). However, these provisions do not apply to disabilities for which the assigned ratings have been in effect for less than five years. Such disabilities are not considered stabilized and, thus, are subject to improvement. Reexamination disclosing improvement in the disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). Here, the Veteran's 100 percent prostate cancer rating was in effect from April 20, 2007, to October 1, 2008, a period of approximately 18 months. Therefore, the provisions of 38 C.F.R. § 3.344(a) did not apply to his rating, which was subject to reduction on reexamination demonstrating improvement in the underlying disability. 38 C.F.R. § 3.344(c). Nevertheless, in any rating-reduction case, certain general regulations need to be considered. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; 38 C.F.R. § 3.344(c) (authorizing reduction of a rating in effect for less than five years on the basis of examination disclosing improvement). VA regulations provide that prostate cancer and other malignant neoplasms of the genitourinary system are initially rated as totally disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528. However, each such cancerous disorder is subject to a VA examination six months after the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Thereafter, based upon that or any subsequent examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Applying the above criteria to the facts of the instant case, the RO scheduled the Veteran for a VA examination in March 2008, nearly one year after his 100 percent prostate cancer rating took effect on April 20, 2007. During the March 2008 examination the Veteran complained of urinary and stress incontinence in the wake of his June 2007 radical perineal prostatectomy. He denied any treatment, including radiation or chemotherapy, other than the radical prostatectomy. Additionally, postoperative Urology Clinic records are negative for any findings of recurrent malignancies or metastasis of the Veteran's prostate. The RO consequently determined that a rating revision was in order and notified the Veteran of its intent to reduce his prostate cancer rating from 100 percent to 10 percent. The rating was subsequently reduced to 10 percent in a July 2008 rating decision, with an effective date of October 1, 2008. Upon examining the regulations and clinical evidence described above, the Board finds that the reduction in the Veteran's evaluation from 100 percent was proper. Initially, the Board notes that all notification requirements under 38 C.F.R. § 3.105(e) were met. Specifically, the Veteran was notified in April 2008 of the proposed reduction in rating for his service-connected prostate cancer disability from 100 percent to 10 percent, based on findings of a March 2008 VA examination, and based on the Veteran's reports during his postoperative VA Urology Clinic Visits. The Veteran did not respond to the RO's proposal within the 60-day time limit set forth in the regulation. 38 C.F.R. § 3.105(e). Nor did he inform VA of any instances of radiation, chemotherapy, or other treatment for active-stage prostate cancer since June 2007. There is no other evidence of such treatment in the Veteran's claims file. In fact, the record reflects that his cancer has remained in remission with no recurrence of the disease. For the foregoing reasons, the Board finds that the weight of the evidence, both clinical and lay, shows that the Veteran's service-connected prostate disorder has undergone actual improvement. Accordingly, the Veteran no longer meets the criteria for a 100 percent schedular evaluation. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Indeed, there is no evidence that the Veteran's prostate disorder has warranted such an evaluation since well before October 1, 2008, when the rating reduction took effect. Therefore, the Board finds that the criteria for a reduction in the Veteran's prostate disability rating have been met, and restoration of his total schedular evaluation is unwarranted. The Board's analysis does not end here, however, because the Veteran disagrees with the assigned rating of 10 percent from October 1, 2008. As discussed above, there has been no recurrence of the Veteran's active-stage prostate cancer since his June 2007 surgery. Thus, pursuant to Diagnostic Code 7528, his prostate cancer residuals are to be evaluated based on renal or voiding dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under the renal dysfunction criteria set forth in 38 C.F.R. § 4.115a, a 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assignable for persistent edema and albuminuria with BUN [blood urea nitrogen] 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent rating is appropriate 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. In this case the Veteran has not alleged, and the evidence does not show, that his prostate cancer disability has been accompanied by any of the aforementioned symptoms of renal dysfunction. Accordingly, the Board has no basis to assign a higher rating under these criteria. As for voiding dysfunction, VA regulations provide that the disability is to be rated as a particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than 2 times per day is to be rated as 20 percent disabling. A 40 percent rating is warranted when such impairment requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 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. Id. Urinary frequency with a daytime voiding interval between two and three hours, or awakening to void two times per night, warrants a 10 percent rating. A 20 percent rating is warranted when there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent rating is warranted when there is a daytime voiding interval less than one hour, or awakening to void five or more times per night. Id. Obstructed voiding manifested by obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants the assignment of a noncompensable rating. A 10 percent rating is warranted when there is 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. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); 3. Recurrent urinary tract infections secondary to obstruction; and/or 4. Stricture disease requiring periodic dilatation every 2 to 3 months. 38 C.F.R. § 4.115a. A maximum 30 percent rating is warranted for obstructed voiding manifested by urinary retention requiring intermittent or continuous catheterization. Id. As previously noted, the Veteran's voiding dysfunction has been evaluated as 10 percent disabling since October 1, 2008 based on urinary and stress incontinence and use of an average of one pad per month. However, the Board notes that the Veteran has consistently reported, during Urology Clinic visits and in statements to the Board in support of his appeal, that he has had urinary incontinence since surgery. Indeed, the March 2008 examiner documented the Veteran as complaining of urinary incontinence with straining, including when climbing ladders, lifting, pushing, and pulling; and the diagnosis was prostate cancer status post radical prostatectomy with continued urinary incontinence. Additionally, in a statement in August 2008 the Veteran reported that he had to wear a diaper at all times, regardless of whether at work or at home, because of incontinence; and during a September 2008 VA diabetes examination the Veteran again reported that he had to wear a diaper due to "dribbles and wets with stress incontinence." Therefore, and based on all of the lay and medical evidence of record, the Board finds that the criteria for a 20 percent rating beginning October 1, 2008, based on continual urine leakage, urinary incontinence, and stress incontinence requiring the wearing of absorbent materials changed less than 2 times per day, are met. 38 C.F.R. § 4.115a. The Board notes that the Veteran reported a diaper change of two times per day during his September 2008 examination, and of 2 to 3 pads per day during a November 2008 Urology Clinic visit; however, the Board does not find these assertions to be credible, particularly as the Veteran had consistently denied wearing more than one diaper per day prior to the September 2008 diabetes examination, and as there were no corroboratory findings during that examination. See, e.g., October 2007 and May 2008 Urology Clinic records of "no pads." While it is clear that the Veteran does indeed suffer, post surgery, from dribbling and urinary incontinence (see, e.g., December 2008 statement from Veteran re impact on current employment), and consequently would need to wear a pad, the Veteran did not allege the use of more than one pad per day until after notice of the assigned 10 percent rating in the July 2008 rating decision. See Caluza v. Brown, 7 Vet.App. 498, 511-12 (1995) (providing that the credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements . . .). In this case, the monetary interest to be gained by the Veteran in his post reduction assertions of using more than one pad per day discredits the Veteran's statements, particularly as he made no such allegation prior to the rating reduction. The Board accordingly finds that the Veteran's belated claim of using two or more pads per day is not credible. Id. See also Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, that is, because of possible bias or conflicting statements). The criteria for a rating of 40 percent or more beginning October 1, 2008, based on leakage, urinary incontinence, and stress incontinence are therefore not met. There is also no lay or medical evidence of daytime voiding less than one hour or waking to void five or more times per night, and no lay or medical evidence of any obstructed voiding, so a rating higher than 20 percent under the "urinary frequency" or "obstructed voiding" provisions of 38 C.F.R. § 4.115a beginning October 1, 2008, is not warranted. While the Board has thus far confined its analysis to the provisions of the VA Rating Schedule, it recognizes that, in exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, throughout the period following the reduction of the Veteran's total schedular rating, his service-connected prostate disorder has been productive of voiding dysfunction, manifest by continual urine leakage, urinary incontinence, and stress incontinence requiring the wearing of absorbent materials. These symptoms are expressly contemplated by the aforementioned schedular rating criteria and the Veteran has not alleged otherwise. Therefore, the Board is satisfied that these criteria are adequate to evaluate his service-connected disability and that referral for consideration of extraschedular rating is not warranted. Finally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case the evidence does not show that the Veteran is unemployable by his service-connected prostate disability. On the contrary, the medical evidence shows that Veteran's prostate cancer has been in remission since surgery in June 2007. There is also no evidence of any repeated hospitalizations or excessive absences from work since the October 1, 2008, effective date of the reduction in rating from 100 percent. Accordingly, consideration pursuant to 38 C.F.R. § 4.16 is not warranted. In sum, the weight of the competent and credible evidence shows that reduction of the Veteran's total schedular evaluation for prostate cancer was proper and that, since the date of that rating reduction, his residual symptoms have warranted a rating of 20 percent, but no higher, based on voiding dysfunction. In arriving at these conclusions, the Board has carefully considered the lay assertions of the Veteran, and all reasonable doubt has been resolved in the Veteran's favor in making this decision. See 38 U.S.C.A. § 5107(b). The preponderance of the evidence weighs against the assignment of any higher rating than that which is hereby granted. ORDER Entitlement to restoration of the previously assigned 100 percent rating for prostate cancer, is denied. A rating of 20 percent, but no higher, for prostate cancer residuals beginning October 1, 2008, is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs