Citation Nr: 1317957 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-29 221 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for residuals of prostate cancer from June 22, 2005, and to a rating in excess of 40 percent from May 17, 2011. (The issue of the Veteran's entitlement to an effective date earlier than June 22, 2005, for the award of service connection for the residuals of prostate cancer is the subject of a separate appellate decision). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from June 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the VARO in Philadelphia, Pennsylvania, that granted service connection for residuals of prostate cancer and awarded a 10 percent rating, effective the date of receipt of the claim in June 2005. The case was previously before the Board in December 2009 and remanded for further development. Additional evidence was developed and by rating decision dated in July 2011, the VARO in St. Petersburg, Florida, granted a 20 percent rating for the Veteran's residuals of prostate cancer, effective June 22, 2005. A disability rating of 40 percent was assigned effective May 17, 2011, the date of a VA rating examination. The law provides that a claimant seeking a higher VA disability rating will be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993) (stating that a claimant may limit his claim to the issue of entitlement to a particular disability that is less than the maximum allowed by law for a specific service connection claim, but, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available ratings for that condition). In his VA Form 9, dated in November 2009, the Veteran referred to peripheral neuropathy of the right lower extremity being rated only 10 percent disabling, chronic back pain, memory impairment, and sleep apnea. The Veteran has also alluded to these non-service-connected disorders causing him to be unemployed. These matters are not in proper appellate status and are REFERRED to the RO for appropriate consideration. In addition to the residuals of the prostate cancer, service connection is in effect for: diabetes mellitus with erectile dysfunction and dermatophytosis of the right great toenail and xerosis of the feet, rated as 40 percent disabling; peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling. A combined rating of 60 percent has been in effect since May 17, 2011. The Veteran is also entitled to special monthly compensation on account of loss of use of a creative organ from May 9, 2002. In various letters, the Veteran has alleged that his combined disability evaluation should be calculated mathematically to result in a periodically higher combined evaluation. THE VETERAN IS ADVISED that by law, VA is required to use a "Combined Ratings Table," located at Title 38, Code of Federal Regulations, Section 4.25 ("Table). The Table does not use a mathematical calculation to determine the combined rating. Instead, it calculates a combined rating for the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. The end result is that often the combined ratings of all of a person's disabilities will be lower than the sum of the individual disabilities. See 38 C.F.R. § 4.25 . FINDINGS OF FACT 1. From June 22, 2005, the residuals of prostate cancer have been manifested by urinary frequency with daytime voiding and nighttime awakening to void no more than 4 times per night, and no appreciable functional impairment demonstrated with ordinary daily activities. 2. From May 17, 2011, the prostate cancer residuals have been reported as causing functional impairment. Changing of absorbent materials more than 4 times a day has not been shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for prostate cancer residuals prior to May 17, 2011, are not met. 38 U.S.C.A. § 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.115 (a), 4.115 (b), Diagnostic Codes 7528, 7527 (2012). 2. The criteria for a disability rating in excess of 40 percent for residuals of prostate cancer from May 17, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115 (a), 4.115 (b), Diagnostic Codes 7528, 7527 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating a claim. As part of the notice, VA must specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by him and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Under the law, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in providing notice is not prejudicial. Hartmann v. Nicholson, 483 F.3d 1311 (2007). Medical records, both private and VA, have been associated with the claims file. The Veteran has been accorded examinations by VA for rating purposes. The case was remanded by the Board to assist the Veteran in the development of his claim. The Board therefore finds that all notification and development action adequate for an equitable determination of the appeal has been accomplished. Accordingly, appellate review may proceed at this time. See Smith v. Gober, 14 Vet. App. 227 (2000), affirmed 281 F.3d 1384 (Fed. Cir. 2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Merits of the Claim Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of all the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). See Fenderson v. West, 12 Vet. App. 119, 126 (2001). The Veteran's residuals of prostate cancer, status postoperative prostatectomy, are rated under Diagnostic Codes 7528-7527. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis of the evaluation assigned. 38 C.F.R. § 4.27 (2012). Under Code 7528, malignant neoplasms of the genitourinary system warrant a 100 percent rating. However, a note to the code states 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 6 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, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115 (a) provides for a noncompensable rating for renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension that is noncompensable under Code 7101. A 30 percent rating is warranted for renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Code 7101. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension, at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent disability rating. Renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80 mg percent; or, creatinine 4 to 8 mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent disability rating. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following; persistent edema and albuminuria; or, blood urea nitrogen (BUN) more than 80 mg percent; or, creatinine more than 8 mg percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent disability rating. 38 C.F.R. § 4.115 (a). Voiding dysfunction is rated as urine linkage, frequency, or obstructed voiding. A 60 percent rating is assigned for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent rating is assigned for disability requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 20 percent rating is for assignment when the disability requires the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115 (a). Under 38 C.F.R. § 4.115 (a) urinary frequency is rated 10 percent disabling when there is a daytime voiding interval between 2 or 3 hours or awakening to void two times per night. A 20 percent rating is warranted where there is a daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 40 percent rating contemplates a daytime voiding interval of less than one hour or awakening to void 5 or more times per night. The preponderance of the evidence is against the claim for increased ratings, and the appeal will be denied. The record includes the report of a VA rating examination of the Veteran conducted in July 2005. At that time it was noted there were no general systemic symptoms. The Veteran stated that he voided once nightly. He described frequent urgency, but did not have any hesitancy or difficulty starting his stream. Intermittent stream was reported as occasional. Frequent dysuria was reported. There was also occasional dribbling noted. No hematuria or unreasonable discharge was indicated. There was no history of recurrent urinary tract infections, obstructive voiding, urinary tract stones, renal dysfunction, acute nephritis, hydronephrosis, or cardiovascular symptoms. Laboratory testing was unremarkable except for bilirubin and reduced alanine transaminase (ALT). As for impact on daily activities, it was stated there was mild impact on dressing. Otherwise there was no impact whatsoever involving any other basic daily function. The examiner noted the Veteran had to wear boxer shorts rather than briefs he formerly wore. The Veteran was not employed. The medical evidence also includes the report of a VA urology outpatient visit in June 2006, when the Veteran stated he was having frequent nocturia (despite taking medication). Pertinent private medical records include an August 2006 statement from a physician at a private cancer center. The individual stated the Veteran had completed a course of external beam radiation therapy about two years previously for carcinoma of the prostate. The physician stated that since that time the Veteran had had "persistent problems with nocturia and rectal bleeding with bowel movements." The physician reported the Veteran's report of three episodes of nocturia regularly and that he continued to experience bright red blood with bowel movements on an intermittent basis. The physician opined it was likely these side effects would be long term in nature. In July 2007, the Veteran continued to note "1 or 2 episodes of nocturia regularly..." Following examination an assessment was made that the Veteran appeared to be doing well and had no evidence of persistent disease. VA outpatient treatment records also include the report of an October 2008 visit at which time it was stated that he complained of nocturia two times nightly. He also had some urgency. He voided about every two hours. He denied any hematuria. Also of record is a report of a VA urology outpatient visit in February 2009. At that time it was stated the Veteran was doing well with voiding. He noted improvement with medication. In a September 2009 VA note, the Veteran reported nocturia only one time a night. An improved stream was noted. He also stated there was some frequency. The findings on these medical records are most consistent with the 20 percent rating assigned. The Veteran was accorded a genitourinary examination by VA on May 17, 2011. He was taking medication. As for urinary symptoms he stated he had urgency, dribbling, weak or intermittent stream, and the he strained to urinate. With regard to frequency, he reported a daytime interval as less than one hour about 40% of the time. He did not report any hesitancy or difficulty starting his stream. There was no dysuria, hematuria, urinary retention or urethral discharge. Also, there was no urinary leakage and no history of obstructed voiding, urinary tract stones, renal dysfunction, acute nephritis, hydronephrosis, or cardiovascular symptoms. Also reported as residuals of the neoplasm and its treatment were reported as urinary urgency and erectile dysfunction. No other significant findings were noted. The Veteran reported that he was not then employed. He had retired from a position as a dental technician in 2002. It was noted he had also been a professor of dental technology for approximately 9 years. He stated he retired for medical purposes because of a low back condition and his prostate cancer. Following examination, the diagnoses were adenocarcinoma of the prostate, erectile dysfunction, and lower urinary tract symptoms. It was noted the cancer was inactive at the present time with undetectable PSA level. In response to whether there were effects of the problem on unusual daily activities, the examiner responded "yes." No elaboration was provided. The preponderance of the evidence is against a finding that the criteria for a rating higher than 40 percent is warranted at any point during the appeal period or since May 2011. The Board has considered the Veteran's statements regarding the frequency of urination. Impairment with the performance of daily activities was noted at the time of the May 20121 examination. However, neither lay nor medical evidence shows the use of an appliance or the wearing of absorbent materials needing to be changed more than 4 times a day. The Board also notes that 40 percent is the highest rating available based on urinary frequency. Regarding renal dysfunction, the Board notes that there is no evidence of renal dysfunction during this appeal during the entire appeal period. As there is no evidence of renal dysfunction, consideration of the higher evaluation under that diagnostic code is unwarranted. As for the time frame prior to May 17, 2011, the preponderance of the evidence is against the claim for a higher rating than 20 percent. As noted, in July 2005 the Veteran reported voiding only one time nightly. While he reported voiding three times nightly at the time of an August 2006 visit, a private physician stated in July 2007 that the Veteran reported voiding only 1 or 2 times nightly. The record shows at the time of a VA outpatient visit in October 2008, the Veteran reported voiding only two times. At the time of a February 2009 visit, he was described as doing well. Further on a September 2009 visit he was reported as voiding only one time a night. Importantly, none of the examinations prior to May 2011 reflected significant functional impairment attributable to the prostate cancer residuals. For example, the record shows that at the time of the 2005 rating examination, other than mild impairment with dressing, there was no negative impact noted stemming from the cancer on the performance of the Veteran's basic daily activities. Both the staged ratings assigned are appropriate. The Board notes that the record establishes that the Veteran has been awarded special monthly compensation at the "K" rate on account of loss of use of a creative organ. However, with regard to the residuals of the prostate cancer, the Board finds that no higher evaluation can be assigned pursuant to any potentially applicable diagnostic code for the time frame prior to May 17, 2011, or higher than a 40 percent rating for the time frame since May 17, 2011. Accordingly, the claim for a rating higher than 20 percent prior to May 17, 2011, and to a rating in excess of 40 percent since that date for residuals of prostate cancer is denied. Extraschedular Rating The Board has also considered referral for an extraschedular rating. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), affirmed sub nom Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. There is no evidence to suggest that the ratings assigned do not adequately contemplate the Veteran's disability picture. The Veteran has not required frequent periods of hospitalization for his prostate cancer residuals and the manifestations of the disability are contemplated by the schedular criteria. Therefore, there is no reason to find that the average industrial impairment from the disability would have been in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extraschedular consideration is not in order. ORDER A disability rating in excess of 20 percent for prostate cancer residuals prior to May 17, 2011, is denied. A disability rating in excess of 40 percent for prostate cancer residuals from May 17, 2011, is denied. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs