Citation Nr: 1318214 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-42 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for anemia, to include as secondary to service-connected prostate cancer. 2. Entitlement to an evaluation in excess of 20 percent for residuals of prostate cancer, effective from May 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1969 to December 1970, to include a tour of duty in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which implemented a proposed reduction in the evaluation of residuals of prostate cancer from 100 percent to 20 percent, effective May 1, 2009, and denied service connection for anemia. The Veteran has not disputed the propriety of the reduction with respect to the applied due process; his disagreement lies with the evaluation assigned following the reduction. The issue is characterized to reflect his contention. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. In October 2009, the Veteran requested a hearing before a Veterans Law Judge; such was scheduled to be held via videoconference from the RO in April 2011. However, the Veteran failed to report for the hearing without explanation or a request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. Anemia was not first manifested on active duty or for many years afterwards; the competent evidence of record is against a finding that anemia is caused or aggravated by service or a service-connected disease. 2. Residuals of prostate cancer are currently identified as daytime voiding hourly, nighttime voiding four times a night, and incontinence without a need for absorbent material. CONCLUSIONS OF LAW 1. The criteria for service connection of anemia are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for an evaluation in excess of 20 percent for residuals of prostate cancer since May 1, 2009, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to prostate cancer, the reduction in accordance with 38 C.F.R. § 3.105(e) includes its own notice requirement, which was complied with in September 2008 correspondence notifying the Veteran of the proposed action. The Veteran was informed of the applicable rating criteria. A November 2008 letter satisfied the duty to notify provisions with regard to anemia. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a September 2010 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in March and July 2008 with regard to prostate cancer residuals. The examiners made all required findings for application of the rating schedule, and the Veteran has not alleged the examinations are not adequate for rating purposes. While he has made the general allegation that his disability is "worse" since the most recent examination, he has provided no specific allegations or evidence showing such, nor has the Veteran's representative offered any findings, evidence, or argument showing current symptoms worse than those shown on examination. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). No updated VA examination is therefore warranted; the 2008 examinations adequately reflect the current disability picture. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). While it appears that there are outstanding records from Dr. CAW, the Veteran's treating primary care physician, she did supply limited records, and the Veteran was informed of the difficulties in obtaining her records in December 2008, and no additional records were forthcoming. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Anemia Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran alleges that his currently diagnosed anemia is causally related to his treatment for service-connected prostate cancer. The condition was initially noted incidental to a March 2008 VA examination for evaluation of prostate cancer. The VA contract examiner was asked to note when active treatment for prostate cancer had ended, and to identify and fully describe residuals of the cancer and its treatment. The examiner found that active radiation treatment had concluded in December 2007. He commented that urinary incontinence was a residual of the cancer, and described such as requiring frequent urination, with weak flow and difficulty starting the stream. The Veteran urinated during the day every 1/2 hour, and at night every 1 1/2 hours, up to four times. While he was incontinent, the Veteran denied use of any pad or other absorbent material. His penis was physically normal. Blood work showed signs of anemia, and the Veteran was advised to follow up with his primary care doctor. Anemia was not specifically related to the prostate cancer, however. Private records from Dr. CAW dated in March 2008 and July 2008 note the VA lab results. The Veteran was prescribed an iron supplement, and follow-up testing was requested. However, as was noted above, no further records were forthcoming from Dr. CAW. She did not indicate any etiology for the anemia. At a second VA examination in July 2008, the Veteran reported that during the day, he had to urinate every hour. At night, he woke to void four times, about once every two hours. He complained of dribbling, but stated he did not use any pads or other absorbent materials. He had no problems starting urination. The prostate was diminished in size. Blood work continued to show signs of anemia; the examiner stated that it was impossible to determine if the anemia was related to prostate cancer without further testing. VA treatment records from August 2009 indicate that although the Veteran had a history of hypochromic anemia, his present profile was normal. That same month, a VA medical opinion was sought. The examiner noted the Veteran's diagnosis of mild microcytic/hypochromic anemia with normal iron studies and normal B12/folate levels, based on private testing. The examiner stated that there was no evidence that prostate cancer itself or the treatments for prostate cancer leads to anemia. The examiner went on to note that the Veteran was African-American, and that thalassemia, an inherited blood disorder affecting the development of red blood cells, was the most likely cause of the anemia in this case. The examiner specifically noted that no further testing was required, as the private work-up ruled out other forms of anemia. The Board finds this opinion to be highly probative evidence. It was rendered on the basis of the Veteran's history, as gleaned from the private and VA treatment records. It is well-reasoned, and is not contradicted by the competent evidence of record. By contrast, the sole evidence of a relationship of any kind between anemia and prostate cancer is the opinion of the Veteran himself. As a layperson, the Veteran lacks the necessary medical training and knowledge to render a competent etiology opinion in this case; it is not a matter of an observable cause and effect. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not repeating the information a doctor gave to him, which he is competent to do. He is instead extrapolating from the fact that anemia was noted incidental to a prostate cancer examination that there is a causal relationship. This is, however, coincidence, and not correlation. The sole competent medical opinion of record is entirely negative, and definitively states that there is no relationship between anemia and the Veteran's service-connected cancer. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for anemia is not warranted. Prostate Cancer In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Prostate cancer is rated under the provisions of Diagnostic Code 7528, as a malignant neoplasm of the genitourinary system. A 100 percent evaluation is assigned during any active disease process, and for six months following the cessation of therapeutic treatment. At the end of those six months, a VA examination is required, and a new evaluation is assigned based on the identified predominant residuals of the cancer, such as renal or voiding dysfunction. 38 C.F.R. § 4.115b, Code 7528. If the new evaluation is less than 100 percent, the due process protections of 38 C.F.R. § 3.105(e) must be respected. Basically, the Veteran is entitled to 60 days notice of the proposed reduction, and must be afforded an opportunity to dispute the action. At the conclusion of the 60 days, a final rating decision implementing the reduction is issued, with the new evaluation effective the first day of the month 60 days following the issuance of the final decision. 38 C.F.R. § 3.105(e). Here, VA received information that the Veteran's radiation therapy for prostate cancer had concluded in December 2007. The Veteran was scheduled for an examination in March 2008, which confirmed the absence of active disease and the conclusion of radiation therapy. A follow-up examination in July 2008 reiterated that there was no active disease and that treatment had ended more than six months prior. A September 2008 rating decision was issued which proposed to reduce the Veteran's 100 percent rating to 20 percent; the Veteran was notified of the proposal at his address of record. The Veteran did not request a predetermination hearing, and so in a February 2009 rating decision, he was informed that effective May 1, 2009, the reduction would be implemented. The preceding complied fully with the provisions of 38 C.F.R. § 3.105(e). The Veteran then disagreed with the final reduction in March 2009, stating that he had "lost the ability to control my bladder function," and disputing the level to which he had been reduced. The sole identified residuals of the Veteran's prostate cancer involve his voiding dysfunction and increased urinary frequency. The Schedule provides that where incontinence requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is assigned. A 40 percent evaluation is assigned for the changing of absorbent materials two to four times per day. If changing is needed less than twice a day, a 20 percent evaluation is assigned. 38 C.F.R. § 4.115a. Here, although the Veteran complains of dribbling and states that he has "lost bladder control," he has repeatedly denied the use of any pads or other absorbent materials, and the clinical records are negative for such treatment. Accordingly, no compensable evaluation is assignable for voiding dysfunction. VA therefore considered the alternative criteria applicable to increased urinary frequency. Daytime voiding with an interval of less than one hour, or; awakening to void five or more times per night is rated 40 percent disabling. Daytime voiding intervals between one and two hours, or; nighttime voiding three to four times merits a 20 percent evaluation. A daytime voiding interval between two and three hours, or; awakening to void two times per night is rated 10 percent disabling. 38 C.F.R. § 4.115a. The Veteran has at no time alleged needing to awaken more than four times a night to void his bladder, warranting no greater than the currently assigned 20 percent evaluation. Although the March 2008 VA examination showed a daytime voiding internal of 1/2 hour, this was during the period of a total, 100 percent evaluation. By July 2008, the daytime voiding interval had improved to one hour, corresponding to a 20 percent evaluation. At no time since May 1, 2009, the effective date of the reduction, has the voiding interval been reported or alleged to have fallen below one hour. An increased, 40 percent schedular evaluation is not warranted. The Board has considered Schedular evaluations for obstructed voiding, renal dysfunction, or urinary tract infections, but none of these residuals of prostate cancer or its treatment are present. 38 C.F.R. § 4.115a. Consideration has also been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the Schedular criteria are perfectly adequate. They directly address the reported symptoms of incontinence and increased urinary frequency, and allow for yet higher evaluations than that currently assigned with increased symptomatology. Although this threshold factor has not been met, for the sake of completeness, the Board also notes that the Veteran has not presented an exceptional disability picture. There is no evidence that he has been frequently hospitalized due to his urinary symptoms; nor is there evidence that these symptoms markedly interfere with employment. Therefore, the Board finds no cause to refer the issue of extraschedular consideration. In short, the Board finds that the preponderance of the evidence is against the claim; therefore, there is no doubt to be resolved. An evaluation in excess of 20 percent for residuals of prostate cancer since May 1, 2009, is not warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for anemia is denied. An evaluation in excess of 20 percent for residuals of prostate cancer since May 1, 2009, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs