Citation Nr: 1318908	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-42 913	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin



THE ISSUE

Entitlement to a rating in excess of 60 percent for the residuals of prostate cancer, status post suprapubic prostatectomy.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1967 to December 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA).  That decision granted an increased 100 percent rating based upon a biochemical recurrence of prostate gland adenocarcinoma after prostatectomy and a 40 percent rating effective from December 13, 2008.  An increased 60 percent rating was granted effective from December 13, 2008, in a September 2009 rating decision.


FINDING OF FACT

The evidence shows the Veteran's residuals of prostate cancer, status post suprapubic prostatectomy, is manifested predominantly by no more than the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  


CONCLUSION OF LAW

The criteria for a rating in excess of 60 percent for the residuals of prostate cancer, status post suprapubic prostatectomy, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2012).




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REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in December 2008 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in March 2009.  Nothing more was required.  

VA also has a duty to assist a veteran in the development of the claims.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

All identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service medical records, VA treatment and examination reports, Virtual VA electronic records, and the Veteran's statements in support of his claim.  There is no indication of any additional existing pertinent records.  The Board finds that further attempts to obtain additional evidence would be futile.  

When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.  VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012).  There has been substantial compliance with all pertinent VA law and regulations and to adjudicate this claim would not cause any prejudice to the appellant.  

Disability rating are determined by the application of VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2012).  The Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  For the application of the schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.  Over a period of many years, a Veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his physical or mental condition.  It is thus essential, both in the examination and in the rating of disability, that each disability be viewed in relation to its history.  38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2012).

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 (2007).

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability present.  38 C.F.R. § 4.2 (2012).  Rating of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited.  38 C.F.R. § 4.14 (2012).  

Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  

VA regulations provide that diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these.  Descriptions of various levels of disability in each symptom areas for renal dysfunction, voiding dysfunction, urinary frequency, obstructive voiding, and urinary tract infection are provided.  Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes.  Since the areas of dysfunction described do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis.  See 38 C.F.R. § 4.115a (2012). 

For renal dysfunction, ratings for the disability level for such symptoms include 100 percent with a requirement of 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; 80 percent with persistent edema and albuminuria with BUN 40 to 80mg%, or, creatinine 4 to 8mg%, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; 60 percent with constant albuminuria with some edema, or, definite decrease in kidney function, or, hypertension at least 40 percent disabling under diagnostic code 7101; 30 percent with albumin 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 diagnostic code 7101; and 0 percent with albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101.  38 C.F.R. § 4.115a (2012).

For voiding dysfunction (urine leakage with continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence), ratings for the disability level for such symptoms include 60 percent with required use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day; 40 percent with required wearing of absorbent materials which must be changed 2 to 4 times per day; and 20 percent with required wearing of absorbent materials which must be changed less than 2 times per day.  38 C.F.R. § 115a (2012).

For voiding dysfunction (urine frequency), ratings for the disability level for such symptoms include 40 percent with daytime voiding interval less than one hour, or; awakening to void five or more times per night; 20 percent with daytime voiding interval between one and two hours, or, awakening to void three to four times per night; and 10 percent with daytime voiding interval between two and three hours, or; awakening to void two times per night.  38 C.F.R. § 4.115a (2012).

For voiding dysfunction (obstructed voiding), ratings for the disability level for such symptoms include 30 percent with urinary retention requiring intermittent or continuous catheterization and 10 percent rating with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) and any one or a 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 4. Stricture disease requiring periodic dilatation every 2 to 3 months.  38 C.F.R. § 4.115a (2012).

Regulations provide a 100 percent rating for malignant neoplasms of the genitourinary system.  It is noted, however, 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 six months.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e).  If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b, Diagnostic Code 7528 (2012).

Where a reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105(e) (2012).

The pertinent evidence in this case shows the Veteran was provided a diagnosis of Gleason 3+3 prostate cancer in February 1999 and that he underwent a radical prostatectomy in March 1999.  VA examination in May 2003 noted the Veteran had daytime frequency of voiding hourly with diminished stream and nocturia times one, but that there was no evidence of incontinence, dysuria, or hesitancy.  There was no evidence of prostate cancer recurrence and the Veteran did not wear a pad.  

A June 2003 rating decision established service connection for the residuals of prostate cancer.  A 20 percent rating was assigned effective from July 9, 2002.  

Private treatment records noted biochemical recurrence of prostate gland adenocarcinoma after radical retropubic prostatectomy with slowly rising prostate-specific antigen (PSA) and a finding of 1.15 in July 2007.  Radiation therapy was concluded on December 4, 2007.  

VA records show the Veteran requested an increased rating for his residuals of prostate cancer in November 2008.  In a December 2008 statement he reported that in 2007 blood testing revealed some regrowth of cancer cells and that he had received 39 radiation treatments.  He complained of subsequent pain upon urinating that was uncomfortable and stated he wore absorbent pads when wearing light-colored clothing.  His spouse provided a statement attesting to his pain with urinating and reported that he had difficulty falling asleep after getting up at night.  

VA examination on December 13, 2008, noted that the Veteran had a biochemical recurrence of prostate cancer in May 2007 and that he was referred for salvage radiation therapy from August 2007 to December 2007.  The Veteran denied renal dysfunction, weight loss, fatigue, anorexia, lethargy, but he did complain of burning with urination that was sharp with every episode.  He stated he voided eight to ten times per day and once at night.  He reported his pain was so intense that he had difficulty falling back to sleep after getting up to void at night.  He stated that his stream was okay and that he did not have hesitancy.  He wore pads and changed them one to three times per day, but he did not use an appliance and did not require catheterizations, dilations, drainage procedures, diet therapy, medication, or invasive procedures.  An April 2008 cystoscopy noted he had a urethral stricture.  It was also noted that the Veteran owned a meat market and had no work impairment.  He was independent in all activities of daily living.  Diagnostic testing revealed PSA was undetectable.  The diagnoses included prostate cancer with chemical resolution status post prostatectomy and radiation therapy, secondary urethral stricture, and dysuria.  

In correspondence dated in January 2009 the Veteran reported that he had experienced four days when he could not pass urine.  He described having the urge and a major passing of urine after hours of very painful attempts.  

VA treatment records dated in January 2009 noted the Veteran complained of an inability to urinate and one liter of urine was drained after placement of a Foley catheter.  The diagnosis included urinary retention that was resolved with catheterization.  The examiner noted that laboratory findings did not indicate a significant decrease in renal function or infection.  PSA in January 2009 was undetectable.  A subsequent January 2009 report noted the Veteran was instructed on catheterization for emergent bladder emptying.  A February 2009 report noted he underwent cystoscopy with normal examination and slight narrowing of the urethra.  He was instructed to catheterize himself once a week.  

In correspondence dated in March 2009 the Veteran reported he had experienced additional problems with urinary retention after handling sixty to seventy pound boxes of ground beef that required he excuse himself for catheterization.  He stated his flow had been good, but that his pain persisted and he required catheterization every four to five days.  He asserted this made it difficult for him to do his job.  

VA treatment records dated in July 2009 noted the Veteran complained of intermittent daily pain that was occasionally severe.  It was noted he had been counseled to perform intermittent catheterization daily.  He reported daytime voiding every hour in the mornings and every two hours in the afternoons.  He reported voiding one to two times per night.  He described his stream as strong without straining.  He had urgency up to two times daily and a small amount of urge incontinence throughout the day.  He changed his pads one to three times per day.  The Veteran was provided medication and advised to continue catheterization at least every week in addition to on an as needed basis.  

In statements dated in October 2009 and September 2010 the Veteran described having experienced changes in his daily activities and work routines due to his disability.  He stated the use of a catheter weekly or more often was annoying.  In his September 2010 statement he reported that he did not wish to file a claim for unemployability.  He stated that because he owned his business he was able to work around his health conditions and could supervise his employees.  

Based upon the evidence of record, the Board finds the Veteran's residuals of prostate cancer, status post suprapubic prostatectomy, is manifested predominantly by no more than the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  The evidence demonstrates he experiences voiding dysfunction with urinary frequency, obstructive voiding, and pain.  The Veteran's statements as to his present symptoms are credible and competent.  The Board notes that as the ratings assigned in the March 2009 rating decision did not result in a reduction or discontinuance of compensation payments then currently being made the 60-day notice provision of 38 C.F.R. § 3.105(e) (2012) was not applicable.  

VA regulations provide, however, that only the predominant area of dysfunction shall be considered for rating purposes.  See 38 C.F.R. § 4.115a (2012).  There is no evidence of a renal dysfunction that requires regular dialysis or precludes more than sedentary activity due to persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, markedly decreased function of kidney or other organ systems, and no evidence of persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  There is no basis under the applicable regulations for any higher or separate ratings.  Therefore, the claim a schedular rating in excess of 60 percent must be denied.

The Board further finds there is no evidence of any unusual or exceptional circumstances related to this service-connected disability that would take the Veteran's case outside the norm so as to warrant an extraschedular rating.  There is a three-step inquiry for determining whether a Veteran is entitled to extraschedular rating consideration.  First, VA must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  Second, if the schedular rating does not contemplate the level of disability and symptomatology and is found to be inadequate, then VA must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as governing norms.  Third, if the rating schedule is inadequate to rate a Veteran's disability picture and that picture has related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).

The Board finds the Veteran's service-connected residuals of prostate cancer is adequately rated under the available schedular criteria and that the objective findings of impairment are well documented.  There is no evidence of a disability more severe than the assigned schedular rating.  The Veteran's statements as to his ability to work are persuasive.  Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted.  A marked interference with employment, beyond that anticipated by the assigned ratings, and frequent hospitalization due to this disability are not shown.  Bagwell v. Brown, 9 Vet. App. 337 (1996).  

Further, although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  He reported in September 2010 that he owned his own business, and that he was able to work around his health issues, which include included supervising his employees.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378  (Fed. Cir. 2001).

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 Veteran 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); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating and the claim must be denied.


ORDER

Entitlement to a rating in excess of 60 percent for the residuals of prostate cancer, status post suprapubic prostatectomy, is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs