Citation Nr: 1315706 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 07-01 604 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for the service-connected residuals of prostate cancer, status post radical prostectomy, to include urinary frequency and urinary incontinence, currently evaluated as 60 percent disabling beginning on February 1, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran had active service from June 1967 to August 1970. This matter initially came before the Board of Veteran's Appeals (Board) on appeal from a November 2006 rating decision of the RO. By way of history, in November 2010, the Board remanded this matter for additional development. In a January 2006 rating decision, the RO granted service connection and assigned a 100 percent evaluation for the residuals of prostate cancer, effective on November 7, 2005. In a July 2006 rating decision, the RO proposed to reduce the Veteran's disability rating for prostate cancer to a 20 percent evaluation following a waiting period exceeding 60 days. The reduction was implemented in a November 2006 rating action, effective on February 1, 2007. In a December 2011 rating decision, the RO increased the evaluation assigned for the service-connected residuals of prostate cancer to 60 percent, effective on February 1, 2007. The Board remanded this issue for further development in February 2013. Concurrently, the Board decided that the rating reduction from the 100 percent evaluation originally assigned for the service-connected disability was proper and denied restoration. As the current 60 percent rating is still less than the maximum benefit available, the issue remains on appeal and is now ready for appellate disposition. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the issues of service connection for erectile dysfunction and coronary artery disease have been reasonably raised by the record. These matters have not been addressed by the RO and referred for appropriate consideration. The Board has considered documents in the Virtual VA system in reaching the determination below. FINDING OF FACT The service-connected residuals of prostate cancer are predominantly characterized by voiding dysfunction and a moderate degree of renal dysfunction, but is not characterized by persistent edema and albuminuria with BUN 40 to 80mg% (milligrams per 100 milliliters); or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss or a limitation of exertion. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 60 percent for the service-connected residuals of prostate cancer, status post radical prostectomy, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.115a, 4.115b including Diagnostic Code (DC) 7528 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA notice requirements are intended to notify the appellant of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in December 2005, July 2006, August 2006 and January 2012 letters, to include an explanation on VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Post-service treatment records and lay statements have been associated with the record. Additionally, pursuant to Board remands in November 2010 and February 2013, the Veteran was afforded VA examinations, with the most recent one administered in March 2013. All relevant evidence necessary for an equitable resolution of the issue on appeal have been identified and obtained, to the extent possible. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. Since the Veteran had a meaningful opportunity to participate in the adjudication process, including submitting written statements on his behalf, there has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); cf. Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006). Additionally, the Board notes that the AMC, in its most recent April 2013 Supplemental Statement of the Case when the RVSR provided the rating criteria for the 60 percent evaluation (should have been 80 percent). However, this defect does not affect the fairness of the adjudication because the RVSR correctly evaluated the evidence for an increased rating in excess of 60 percent. Thus, VA satisfied its duties to notify and assist the Veteran. Furthermore, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. General Rating Principles Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.97. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of Prostate Cancer The Veteran's residuals of prostate cancer were evaluated under DC 7528 (malignant neoplasms of the genitourinary system), which generally provides for a 100 percent rating for six months after any therapeutic procedure. Then, if there has been no local reoccurrence or metastasis, the residuals are rated based on voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80mg% (milligrams per 100 milliliters); or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion warrants an 80 percent rating. 38 C.F.R. § 4.115a. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN (blood urea nitrogen) more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Id. Voiding dysfunction is to be rated on the basis of urine leakage, frequency, or obstructed voiding. The criteria for voiding dysfunction are as follows: continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a. There is no rating higher than 60 percent. The rating criteria for urinary frequency, obstructed voiding, and urinary tract infection do not provide for a rating higher than 40 percent and 30 percent. Therefore, they are not favorable to the Veteran and will not be considered. In this case, the predominant area of genitourinary impairment was voiding dysfunction. The Veteran is currently in receipt of a 60 percent evaluation for residuals of his prostate cancer. This is the maximum rating available based on voiding dysfunction, urinary frequency, obstructed voiding, and urinary tract infection criteria. Higher ratings of 80 percent and 100 percent are only available based on renal dysfunction. In summary, the treatment records prior to the November 2010 VA examination showed no significant evidence of any renal dysfunction or insufficiency. Upon VA examination in November 2010, the Veteran denied having lethargy, weakness, anorexia or weight change. No findings of renal dysfunction were rendered. The examiner stated the Veteran had no genitourinary condition that impacted kidney function. However, a review of the Veteran's Virtual VA file, shows some evidence of kidney disease. In August 2011 VA treatment records, the Veteran was noted to have Stage 3 chronic kidney disease with kidney cysts. See CAPRI notes, dates of receipt 9/17/2012, pages 15-17. In December 2011, the renal disease was noted to be of unclear etiology. Renal insufficiency is included as a chronic diagnosis in subsequent treatment records, including in February 2012. Blood work was conducted on multiple occasions, but the creatinine and other measurements were not expressed in percentages, as contemplated by the diagnostic code. Thus, in order to fairly assess the severity of the Veteran's disability, particularly with respect to renal dysfunction, the Veteran was afforded a recent VA examination in March 2013 pursuant to a Board remand. The March 2013 VA examiner reviewed the case file and performed a physical examination of the Veteran. The examiner noted that the Veteran was not taking continuous medication for his condition. The Veteran had a voiding dysfunction due to his prior prostate surgery that required him to use absorbent material that had to be changed two to four times daily. He noted that the Veteran did not require the use of an appliance for the voiding dysfunction, which caused increased urinary frequency of daytime voiding interval between one and two hours and nighttime awakening to void three to four times. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran appeared alert without distress, cooperative, and well nourished. There was no edema of legs. The examiner observed that the Veteran did not have generalized poor health characterized by lethargy, weakness, anorexia or weight loss. The examiner evaluated the Veteran's urine tests from July 2011 to February 2013. He noted that the Veteran did not have albuminuria/proteinuria. The Veteran's creatinine has been in the range of 1.45 to 1.75mg% and his BUN has been in the range of 9 to 13mg%. The examiner noted that the Veteran's creatinine never increased to 4mg% and his BUN never increased to 40mg%. The examiner found that the Veteran did not require dialysis for his moderate degree of renal dysfunction or have any limitation of physical activity. The examiner also found that the Veteran's chest was clear, and his heart was regular. Based on the findings from the recent March 2013 VA examination, the Veteran clearly does not meet the 80 or 100 percent rating criteria based on renal dysfunction. His symptomatology is not productive of persistent edema and albuminuria with BUN 40 to 80mg% or creatinine 4 to 8mg%, nor is there evidence of generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Thus, on this record, the Veteran clearly does not meet the 80 percent rating criteria. Furthermore, the evidence does not show that the Veteran requires regular dialysis, nor does it show that the Veteran cannot perform more than sedentary activity due to any of the following: persistent edema and albuminuria, BUN more than 80 mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Thus, on this record, the Veteran clearly does not meet the 100 percent rating criteria. In sum, the Veteran's disability was appropriately evaluated as 60 percent disabling because the evidence of record shows that he wore absorbent materials that needed to changed more than four times per day. See 38 C.F.R. § 4.115a. A 60 percent evaluation is the highest rating provided for voiding dysfunction. As explained above, the Veteran's disability is not manifest by the renal dysfunction criteria at 80 percent or 100 percent disabling. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. There is no evidentiary basis upon which to assign a rating in excess of 60 percent. Thus, the Veteran's claim for an increased evaluation for residuals of prostate cancer is denied. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The schedular evaluations in this case are adequate. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's residuals of prostate cancer. The March 2013 VA examiner opined that the Veteran's prostate cancer residuals did not impact his ability to work. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular criteria, therefore, are found to be adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An increased evaluation in excess of 60 percent for the service-connected residuals of prostate cancer, status post radical prostatectomy, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs