Citation Nr: 1324726 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-26 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased initial rating for residuals of prostate cancer, rated as 60 percent disabling as of April 3, 2013, as 40 percent disabling as of August 26, 2009, and as 20 percent disabling prior to that date. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2008 by the VARO in Waco, Texas, granting service connection for residuals of prostate cancer, effective from the date of receipt of the Veteran's claim in December 2007, and assigning an initial rating of 20 percent from the aforementioned date. In March 2011, the matter was remanded by the Board for additional development. In February 2012, the Appeals Management Center (AMC) granted an increased initial rating to 40 percent from August 26, 2009. Service connection was also granted for fecal incontinence as a result of prostate cancer. The Board remanded the matter again in March 2013. In April 2013, the AMC granted a 60 percent rating, effective from April 3, 2013. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the present case, the April 2013 VA examiner observed that the Veteran was unable to work due to his service-connected medical conditions, namely prostate cancer-related incontinence. Consequently, the issue of entitlement to a TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's initial ratings claim, it has been listed on the first page of this decision. The issue of TDIU 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. Throughout the period of this claim, the postoperative residuals of prostate cancer have predominantly been manifested by voiding dysfunction. 2. Beginning September 21, 2012, the Veteran's postoperative residuals of prostate cancer are approximated by not more than the wearing of absorbent materials which must be changed more than 4 times per day. 3. From August 26, 2009, through September 20, 2012, the Veteran's postoperative residuals of prostate cancer were approximated by not more than the requiring of wearing absorbent materials which must be changed 2 to 4 times per day or daytime voiding interval less than one hour, or awakening to void five or more times per night; prior to August 26, 2009, the disability was more closely approximated by not more than the requiring of wearing absorbent materials which must be changed less than 2 times per day. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for the postoperative residuals of prostate cancer during the period of this claim prior to August 26, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527 and 7528 (2012). 2. The criteria for a disability rating higher than 40 percent for the postoperative residuals of prostate cancer during the period of this claim from August 26, 2009, through September 20, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527 and 7528 (2012). 3. The criteria for a disability rating of 60 percent, but no higher, for the postoperative residuals of prostate cancer during the period of this claim beginning September 21, 2012, have been met; the criteria for a rating in excess of 60 percent have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527 and 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide 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 the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with the noticed required under the VCAA, to include notice concerning the disability-rating and effective-date elements of his claim, by letter mailed in February 2008, prior to the additional adjudication of the claim in August 2008. This letter informed the Veteran that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. It included information on how VA determines the disability rating by use of the rating schedule and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disability on the veteran's employment, and statements from persons concerning their observations of how the disability has affected the veteran. This letter also informed the Veteran of the assistance that VA would provide to obtain evidence on his behalf. The record reflects that service treatment records and pertinent VA and private medical records have been obtained. In addition, the Veteran has been afforded appropriate VA examinations. The Veteran reported in March 2013 that he has received no private treatment since his initial treatment ended in September 2005. Neither the Veteran nor his representative has identified any further outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Principles Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability, except as noted below. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's claim for service connection for prostate cancer was received in December 2007. The record reflects that the Veteran was diagnosed with prostate cancer in June 2005 and underwent radioactive seed implants followed by daily radiation therapy from October to December 2005. He was granted service connection for the residuals of prostate cancer in an August 2008 rating decision, which also rated the disability as 20 disabling under Diagnostic Code 7528. He disagreed with the evaluation. During the pendency of the claim, the rating for the disability was increased to 40 percent from August 26, 2009, to April 3, 2013, and finally to 60 percent disabling from April 3, 2013. The Veteran's service connected prostate disability is rated under 38 C.F.R. § 4.115a, Diagnostic Code 7527, effective from April 3, 2013. Pursuant to Diagnostic Code 7527, residuals of prostate gland injuries, infections, and hypertrophy are evaluated as voiding dysfunction or urinary tract infection, whichever is predominant. The Board notes that prior to April 3, 2013, the disability was, and still could be rated under Diagnostic Code 7528, which provides that if there has been no local reoccurrence of metastasis of a malignant tumor of the genitourinary system, the residuals should be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 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. 38 C.F.R. § 4.115a. Under 38 C.F.R. § 4.115a, 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. Under 38 C.F.R. § 4.115a , urinary tract infection that requires long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management is evaluated as 10 percent disabling. Urinary tract infection that is recurrent and symptomatic, requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management, is assigned an evaluation of 30 percent. Under 38 C.F.R. § 4.115a, renal dysfunction warrants a 60 percent disability evaluation if there is constant albuminuria with some edema; definite decrease in kidney function; or hypertension at least 40 percent disabling under diagnostic code 7101. A 30 percent disability evaluation is assigned for 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. A non-compensable disability evaluation is assigned for albumin and casts with history of acute nephritis; or for hypertension that is non-compensable under diagnostic code 7101. Also service connection was granted for erectile dysfunction and special monthly compensation for loss of use of a creative organ was granted. The medical evidence on file and the Veteran's statements show that the Veteran's service-connected prostate disability is predominantly manifested by urinary frequency, leakage, and incontinence, rather than urinary tract infections (UTIs) or renal dysfunction. The medical evidence of record indicates that the Veteran does not demonstrate renal dysfunction or UTIs (see VA examination reports dated in April 2013, August 2009, August 2011 and May 2008). The Veteran was afforded a VA examination in May 2008. He reported that his last PSA was in March 2008 and was 0.4. No metastasis was reported. He reported mild dysuria almost every time he urinates along with urgency. He reported urinating every 1 -2 hours and 3 times per night. He has dribbling and occasional leakage but uses on pads or diapers. He has no incontinence. He denied the use of a diaper or device. Renal function was normal as was BUN and creatinine. A letter from Radiotherapy Clinics of Georgia reflects that the Veteran's pre-treatment PSA in 2005 was 8.16 with Gleason 4+3=7. The treating source noted that the Veteran was not disease free (PSA of 0.2 or less for 10 years) at this point and that his PSA had slightly risen in 2008 from 0.4 to 0.5. He submitted medical literature from his clinic in support of the definition of disease free with respect to PSA. The Veteran was afforded a VA examination in August 2009. The Veteran described voiding frequency of 1 to 2 times per hour and 3 to 4 times at night. He noted hesitancy and weak stream but no dysuria. There were no UTIs and a history of kidney stones many years ago. External genital examination was normal. There was no lymphadenopathy. There had been no physician visits in the past several months for treatment of bladder symptoms. The diagnosis included radiation cystitis residual symptoms of urgency, frequency and small amounts of leakage after voiding. The examiner commented that as the PSA was not 0 all the prostate cells were not killed by radiation therapy and the cancer may recur but this can only be determined by periodic PSA. The Veteran was afforded a VA examination in August 2011. The Veteran reported that his urinary incontinence was progressively worse since his radiation therapy. He takes Terazosin 2mg at bedtime for this. His current symptoms include fatigue, lethargy and weakness. His urinary symptoms include urgency, hesitancy, weak stream, dribbling. Daytime voiding was reported as less than once per hour and nocturia of 5 or more times per night. He must change absorbent materials less than 2 times per day. There was no history of UTI but there was a history of obstructed voiding (urinary retention). There was no history of renal dysfunction. Physical examination was not performed as the Veteran had fear of injury. Laboratory results were not deemed abnormal by the examiner. The examiner opined that the post radiation urgency and incontinence caused moderate, severe and preventing effects on various usual daily activities. The Veteran had submitted a record of his voiding prior to the examination which showed frequent urination from August 9 to 16, 2011. In April 2013, the Veteran was again afforded a VA examination. During the examination the Veteran reported that he required the use of absorbent material and noted that he changed his pad four to six times a day. He also noted that he was voiding at less than one hour intervals with nighttime voiding of 5 times or more. The stream was slow with hesitancy, slow stream and weak force. PSA was .04. There had been no UTIs or renal dysfunction. The examiner also noted the disease was in remission. The examiner noted that the Veteran had increased fecal and urinary incontinence documented also in September 2012 VA treatment records which made securing employment not feasible. The Board finds that the criteria for a rating higher than 20 percent during the period prior to August 6, 2009, have not been met. As set forth above, none of the evidence for this period shows that the Veteran required the use of absorbent materials which must be changed two or more times per day. Additionally, none of the evidence for this period shows that the Veteran's voiding interval was less than one hour. Therefore, a higher rating during this time frame is not warranted. However, as of August 26, 2009, record indicates that the Veteran described voiding frequency of 1 to 2 times per hour and 3 to 4 times at night. In August 2011, it was documented that he had no UTIs or renal failure but that he experienced voiding less than once per hour and nocturia of 5 or more times per night, with a need to change absorbent materials less than 2 times per day. There is no evidence dated prior to September 2012 that shows a higher level of disability. Therefore, a rating in excess of 40 percent is not warranted for the time period from August 26, 2009, to August 31, 2012. In April 2013, the RO granted an increased staged rating of 60 percent from April 3, 2013, because on that date the Veteran reported to a VA medical examiner that he now had to change his absorbent pads more than four times per day. However, in the examination report, the examiner made reference to the fact that the Veteran's VA treatment records showed the increased, now severe, incontinence documented in September 2012 VA treatment records. The Board notes that the Virtual VA records include treatment of the Veteran's incontinence in September and October 2012. Specifically, laboratory results and treatment dated September 21, 2012, show that the Veteran's symptoms are consistent with a 60 percent rating from that date. The Board notes that the Veteran is competent to describe the need to change absorbent materials because such actions come to him through his senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence). The Veteran's statements concerning his increased need to change pads since undergoing radiation therapy have been consistent and credible. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for the 60 percent rating are thus met as of September 21, 2012. The Board additionally notes that a 60 percent rating is the maximum rating authorized for voiding dysfunction. The Board has considered whether there is any other schedular basis for granting a higher rating for any portion of the period on appeal but has found none. In particular, the Board has considered whether a 100 percent rating is warranted under Diagnostic Code 7528 on the basis of local recurrence of the prostate cancer with radiation treatment. In this regard the Board notes that the 2008 letter from the Veteran's physician indicates that the rise in the Veteran's PSA from .4 to .5 in 2008 shows he is not disease free. This information has been considered, but the evidence, namely the 2013 VA examination report, describes the prostate cancer as in remission. Also, the Board notes that his PSA in 2013 was listed as .4 and thus is not rising compared to the 0.5 reading in late 2008. Therefore, the Board has determined that a higher rating under Diagnostic Code 7528 is not warranted. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that 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. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for the disability and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of those contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is no in order. ORDER Entitlement to an increased initial rating of 60 percent for residuals of prostate cancer, effective from September 21, 2012, is granted, subject to the laws governing the award of monetary benefits. Entitlement to an increased initial rating in excess of 60 percent for residuals of prostate cancer is denied. Entitlement to an increased initial rating in excess of 40 percent for residuals of prostate cancer for the period from August 26, 2009, through September 20, 2012, is denied. Entitlement to an increased initial rating in excess of 20 percent for residuals of prostate cancer for the period prior to August 26, 2009, is denied. REMAND As noted in the Introduction, the issue of entitlement to a TDIU has been raised by the record. In this regard, the April 2013 VA examiner found that the Veteran was unable to work due to his medical conditions, one of which was fecal incontinence related to prostate cancer. Also, the VA examiner noted that the Veteran was unemployed for the past 12 months. Additionally, the Veteran's representative raised this issue in July 2013 argument before the Board. Therefore, on remand, the Veteran should be provided VCAA notice regarding the information and evidence necessary to substantiate a TDIU, be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and the AOJ should obtain any additional relevant records regarding his service-connected disabilities for the period of this claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a VCAA letter on the issue of entitlement to a TDIU. 2. The AOJ should also obtain any outstanding records and conduct any development relevant to the adjudication of the claim for TDIU. 3. After undertaking any additional development deemed necessary, the Veteran's TDIU claim must be adjudicated. If the determination is unfavorable, the Veteran must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board, as this issue stems from the initial appeal. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs