Citation Nr: 1315964 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-39 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable rating for residuals of prostate cancer status post prostectomy prior to August 16, 2012, and in excess of 40 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD, stomach disability, and skin disability, and granted service connection for prostate cancer residuals, assigning a noncompensable rating, and granted service connection for bilateral hearing loss, assigning a 10 percent rating. A notice of disagreement was filed in January 2010 with regard to the denials of service connection and disability ratings assigned. A statement of the case was issued in August 2010 and a substantive appeal was received in September 2010. The Veteran and his wife testified at a Board hearing in October 2011; the transcript is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2012) and that the Board can go forward on the claim based on the current record. In June 2012, the Board denied the Veteran's claims for service connection for a stomach disability and skin disability. The Board also remanded the issues of entitlement to service connection for an acquired psychiatric disorder to include PTSD. In a December 2012 decision, the RO granted service connection for an acquired psychiatric disorder and the Veteran has not expressed dissatisfaction with this decision. The issue of service connection for an acquired psychiatric disorder is no longer on appeal. In the June 2012 decision, the Board remanded the issues of entitlement to increased ratings for prostate cancer residuals and bilateral hearing loss for additional development. The Board requested the RO obtain additional progress notes related to the Veteran's bilateral hearing loss claim, and conduct an additional VA examination for the Veteran's prostate cancer residuals claim. For the issue of entitlement to an increased rating for residuals of prostate cancer, the Board finds that the August 2012 VA examination report described the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.' Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Therefore, the Board concludes that there was substantial compliance with the directives contained in the Board's prior remand decision for the issue of entitlement to an increased rating for residuals of prostate cancer. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Unfortunately, and for reasons explained below, the issue of entitlement to an increased rating for bilateral hearing loss must again be remanded. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 20, 2011, the Veteran's service-connected residuals have included complaints of urinary incontinence with voiding twice per night, no objective evidence of required use of absorbent materials, and no local reoccurrence or metastasis of the Veteran's prostate cancer. 2. Since October 20, 2011, the Veteran's service-connected residuals have included complaints of voiding frequency of less than one hour, urinary incontinence with required absorbent material which must be changed two to four times per day, and no local reoccurrence or metastasis of the Veteran's prostate cancer. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating, but no higher, for residuals of prostate cancer prior to October 20, 2011 have been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §4.97, Diagnostic Code 7528. 2. The criteria for a schedular rating in excess of 40 percent for residuals of prostate cancer from October 20, 2011 have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §4.97, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. With respect to the increased rating claim on appeal, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a August 2009 letter, sent prior to initial unfavorable AOJ decision issued in January 2010, advised the Veteran of the evidence and information necessary to substantiate an increased rating claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The letter also that informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, as well as all post-service private treatment records identified by the Veteran and the record have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. In addition to the foregoing, the Veteran was also provided with VA examinations in August 2009 and August 2012 in conjunction with the claim on appeal. There is no allegation or indication that the examinations rendered in this appeal were inadequate. Therefore, the Board will proceed with review of the Veteran's claim based upon all relevant evidence. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Law and Regulations Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in 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 C.F.R. Part 4 (2012); 38 U.S.C.A. § 1155 (West 2002). 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 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). 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 (2012). In this case, the Veteran was initially assigned a noncompensable disability rating for residuals of prostate cancer in a January 2010 rating decision made effective the date of claim in May 2009. In a subsequent December 2012 decision, the RO increased the Veteran's disability rating to 40 percent effective August 16, 2012. A 100 percent rating is assignable under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. The note following this diagnostic code indicates that, following the cessation or surgery, 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, then a veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. As indicated below, renal dysfunction has not been shown at any time pertinent to the current claim for increase. Voiding dysfunction is rated by the 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 warrants a 60 percent rating when it requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. If absorbent materials are required which must be changed 2 to 4 times per day, a 40 percent rating is warranted. If absorbent materials are required which must be changed less than 2 times per day, a 20 percent rating is warranted. Id. Daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating. Id. Factual Background Service treatment records are negative of diagnosis or evidence of treatment for any prostate conditions. Treatment records from Baylor University Medical Center dated from February 2002 to April 2002 show treatment for prostate cancer. An April 2002 note indicated the Veteran underwent a radical prostatectomy for Gleason 7 T2b NOMO (confined within the prostate) adenocarcinoma of the prostate and tolerated this well. In a March 2004 note after a car accident, the examiner noted genitourinary symptoms (including frequency) as negative. Another note dated the same day in March 2004 indicated the Veteran was continent. VA treatment records from the Dallas VAMC dated 2009 to January 2010 shows treatment for his prostate cancer residuals. In a July 2009 progress note, the Veteran denied lower urinary tract symptoms or dysuria. In an August 2009 and January 2010 VA progress notes, the Veteran denied dysuria, frequency, or hesitancy. In a January 2010 VA progress note, the Veteran also specifically denied incontinence. A VA genitourinary examination dated in August 2009 shows a review of the Veteran's medical history for prostate cancer and residuals. The examiner noted that the Veteran voids two to three times when he wakes up after his morning coffee and then does not have frequency throughout the rest of the day. The examiner reported that he has intermittent nocturia with a maximum of one to two times a night depending on fluid intake during the day. The Veteran denied any hesitancy or dysuria. He complained of infrequent leakage of small amounts of urine, which can occur with cough or after he finishes urination. He does not use a pad or other absorbent materials. The examiner noted that this condition does not have an effect on occupation or daily activities. Upon physical examination, the examiner noted there were no abnormalities and there was no evidence of urine leakage with cough. The examiner provided a diagnosis of prostate cancer status post prostatectomy with erectile dysfunction and urinary incontinence. The examiner noted that the Veteran's increased frequency in urination is largely dependent upon fluid intake and is less likely than not related to cancer surgery. In a March 2010 VA urology note, the Veteran complained of voiding symptoms. He reported he has had three episodes of urinary incontinence, and a small amount of urine with sneezing and coughing. He denied lower urinary tract symptoms or dysuria. A July 2010 VA progress note indicated a prescription for medication for urinary incontinence. During an August 2010 VA follow-up, the Veteran reported improved symptoms since he started medication. He complained of nocturia twice a night, rare straining, urgency, feeling incompletely empty, and moderate force of stream (FOS). He reported he leaks a small amount of urine, but no pads are required. In a February 2011 VA progress note, the Veteran stated he only leaks when he coughs. He denied straining, urgency, feeling complete bladder emptying, and stones. During an October 2011 Board hearing, the Veteran testified that he goes to the bathroom a couple times an hour, and during the mornings, it is worse. He reported having to stop three times during the two hour drive to the hearing. He asserted that during the evening his frequency varies from every hour to three times a night. He reported he has since been prescribed pads and that he changes them as many as three times a day. If he sneezes or coughs he has a leaking issue. In a February 2012 VA progress note, the Veteran denied weak FOS, urgency, feeling incomplete bladder emptying, and stones. During an August 2012 VA examination, the Veteran reported voiding dysfunction causing urine leakage. He reported it required absorbent material which must be changed two to four times per day, but does not require the use of an appliance. He also reported daytime voiding intervals between one and two hours, and nighttime awakening to void twice per night. The Veteran denied symptoms of obstructed voiding. The examiner noted no history of recurrent symptomatic urinary tract or kidney infections. Analysis As noted above, the August 2009 and August 2012 VA examinations revealed the Veteran had no indication of active cancer. Prior to October 20, 2011, the Board finds the Veteran's residuals of prostate cancer most closely resemble those of the 10 percent disability rating. During a VA genitourinary examination dated in August 2009 and an August 2010 VA follow-up, the Veteran complained of nocturia twice a night. Under the schedular criteria, awakening to void two times per night warrants a 10 percent rating. The Board notes that during August 2009 VA examination, the Veteran also complained of voiding two to three times when he wakes up after his morning coffee which may be indicative of a higher disability rating. However, the Veteran then reported he does not have frequency throughout the rest of the day. The examiner noted that the Veteran's increased frequency in urination is largely dependent upon fluid intake and is less likely than not related to cancer surgery. Furthermore, the above-cited evidence does not support assignment of a disability rating in excess of 10 percent for residuals of prostate cancer at any point prior to October 20, 2011. The evidence pertinent to this time frame indicates that the Veteran had undergone a prostatectomy, and there was no recurrence of prostate cancer. The Veteran clearly experiences urinary leakage and stress incontinence, but at no point has the evidence shown that he needed to change pads less than two times a day or use an appliance, daytime voiding interval between one and two hours, or awakening to void three to four times per night warranting a higher 20 percent rating prior to October 20, 2011. In fact, the Veteran reported during this time that he did not require the use of any absorbent materials. There was also no indication of renal dysfunction. The Board finds the Veteran's symptoms more closely reflect that of the 40 percent disability rating from October 20, 2011. During an October 2011 Board hearing, the Veteran testified that he goes to the bathroom a couple times an hour; for example, he stopped three times during the two hour trip to the hearing. Under the schedular criteria, a daytime voiding interval less than one hour warrants a 40 percent rating. The Board notes that during the August 2012 VA examination, the Veteran reported a daytime voiding interval between one and two hours which does not support a 40 percent disability rating; however, the Veteran also complained of leakage requiring absorbent material which must be changed two to four times per day. Under the schedular criteria, if absorbent materials are required which must be changed 2 to 4 times per day, a 40 percent rating is warranted. Affording the Veteran the benefit of the doubt, the Board finds the Veteran's symptoms warrant a disability rating of 40 percent as of the date of the Veteran's hearing, October 20, 2011. Furthermore, the above-cited evidence does not support assignment of a disability rating in excess of 40 percent for residuals of prostate cancer at any point from October 20, 2011. The evidence pertinent to this time frame indicates that the Veteran had undergone a prostatectomy, and there was no recurrence of prostate cancer. The Veteran clearly experiences urinary leakage and stress incontinence, but at no point has the evidence shown continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence warranting a 60 percent rating when it requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The Board has considered whether higher ratings might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, in the present case, the Veteran's symptoms remained constant within the currently assigned staged ratings. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4 (2012), whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher rating. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In short, the evidence of record is not in equipoise, and that same evidence is against finding that the Veteran is entitled to increased ratings for residuals of prostate cancer. An extra-schedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extra-schedular rating include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). As reflected by the above discussion, the Veteran's symptoms are well within those contemplated by the rating schedule. Therefore, further consideration of an extra-schedular rating is not warranted in this case. The Board has considered whether the issue of a total disability rating for compensation based on individual unemployability is raised by the record but finds that it is not. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a service member submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider total disability based on individual unemployability). In this case, there is no indication that the appellant is unable to obtain or maintain employment solely as a result of his service-connected disorder. ORDER Entitlement to a 10 percent disability rating for residuals of prostate cancer status post prostectomy prior to October 20, 2011, is granted. Entitlement to a disability rating in excess of 40 percent for residuals of prostate cancer status post prostectomy from October 20, 2011, is denied. REMAND The Board regrets the further delay another remand will cause the Veteran, but to decide this case based on the evidence of record would be unfairly prejudicial to the Veteran. Therefore, the case must again be remanded for compliance with the June 2012 remand directives. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 295 (2008); Nieves-Rodriguez, 22 Vet App. 295 (2008); Bernard v. Brown, 4 Vet. App. 384 (1993). In June 2012, the Board remanded the issue of entitlement to an increased rating for bilateral hearing loss. In August 2011, the Veteran underwent a VA outpatient audiological evaluation at the Dallas VAMC. Audiological testing was conducted but the audiogram is not associated with the evaluation. The puretone thresholds in the ears, to include the average puretone thresholds, are not reflected in the report. The examiner noted that hearing was within normal limits from 250-1000 Hertz in the right ear, with mild sloping to moderately-severe sensorineural hearing loss from 1500-8000 Hertz. With regard to the left ear, hearing was within normal limits from 250-1000 Hertz with a mild sloping to severe sensorineural hearing loss from 1500-8000 Hertz. Speech discriminations scores were 92 percent in both ears. In the June 2012 Board remand, the RO/AMC was requested to associate with the claims folder the August 2011 audiogram, with a report of the puretone threshold averages in numeric form. An additional copy of the August 2011 evaluation was added to the claims file; however, the puretone thresholds in the ears, to include the average puretone thresholds, are again not reflected in the report. The RO/AMC is again requested to associate with the claims folder the August 2011 audiogram, with a report of the puretone threshold averages in numeric form. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate the August 19, 2011 audiogram, with complete numerical results, with the claims folder. If the record is found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified of the development. 2. Upon completion of the above, readjudicate the Veteran's claim an initial rating in excess of 10 percent for bilateral hearing loss. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs