Citation Nr: 1326949	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  07-21 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to an evaluation in excess of 30 percent disabling for prostate cancer, status post radiation. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel



INTRODUCTION

The Veteran had active service from April 1966 to November 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In that rating the RO decreased the evaluation assigned to the Veteran's service-connected prostate cancer, status post radiation, from 100 percent to 10 percent, effective February 1, 2007. Then the Veteran's disability evaluation was then increased to 20 percent, effective February 1, 2007, in an April 2007 Statement of the Case (SOC). 

In December 2008, a Travel Board hearing was held at the RO before the undersigned Acting Veterans Law Judge. A transcript of that proceeding has been associated with the claims folder.

In May 2010, the Board remanded this claim to the RO via the Appeals Management Center (AMC) for further development and consideration. In a June 2011 Supplemental Statement of the Case (SSOC), the AMC increased the disability rating assigned for the service-connected prostate cancer to 30 percent, effective February 1, 2007. 

In December 2012, the Board again remanded this claim to the RO via the AMC for additional development. In a May 2013 supplemental statement of the case (SSOC), the RO continued the 30 percent disability evaluation for prostate cancer, status post radiation. Since the AMC did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (holding that, where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 

It is noted that in February 2008, the RO was awarded the Veteran a total rating based on individual unemployability (TDIU) effective to March 17, 2006, which has since been discontinued. Additional TDIU consideration is unnecessary here. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). 

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). 


FINDING OF FACT

The Veteran's prostate cancer, status post radiation, is in remission, and not productive of requiring the wearing of absorbent materials which must be changed 2 to 4 times per day or renal dysfunction. 


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for prostate cancer, status post radiation, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). 

These VCAA notice requirements apply to all five elements of a claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

This appeal is limited to an increased evaluation for prostate cancer, but initially, the Board acknowledges that, prior to the reduction of the Veteran's prostate cancer evaluation from 100 percent to 10 percent disabling, the RO sent notices of the proposed reduction in May and then in November 2006. The November 2006 letter also complied with Dingess by discussing this disability rating element of the claim, as well as the downstream effective date element in the event a higher rating is granted. The disability was reduced in a November 2006 rating, and the Veteran disagreed with the 10 percent evaluation. Notice was subsequently provided in an April 2007 SOC, where the Veteran was then awarded a 20 percent rating, and also in April and July 2008, and June 2011 SSOC's. So in combination, he was informed of the type of evidence required to substantiate his claim for a higher rating and of his and VA's respective responsibilities in obtaining this supporting evidence. Accordingly, any timing defect inherent in the initial VCAA notice to the Veteran was effectively cured by the subsequent readjudications of his claim, which were rendered after he had been given an opportunity to respond to the notice and further development had ensued. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO/AMC obtained his service treatment records (STRs), VA treatment records, Social Security Administration (SSA) records, and arranged for VA compensation examinations, most recently in January 2013, to assess and then reassess the severity of the Veteran's prostate disability. Indeed, the Board remanded this claim previously, most recently in December 2012, to request additional records from the Veteran, along with SSA records, and for that January 2013 VA examination. The Board is satisfied there was compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Board is satisfied that VA has provided all assistance required by the VCAA such that appellate review may proceed without prejudicing the Veteran. 38 U.S.C.A. § 5103A.

An Increased Rating 

The Veteran asserts that his prostate cancer, status post radiation disability, is more disabling that the current 30 percent rating indicates. 

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 the 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). 

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012).

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. 
In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 

A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.

The Veteran is status post radiation treatment for prostate cancer, and rated as 30 percent disabling, effective January 1, 2007, the date prior to reduction from 100 percent rating, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. 

Under Diagnostic Code 7528, a 100 percent evaluation is assignable for active malignant neoplasms of the genitourinary system. Following the cessation of surgical, X-ray, antineo- plastic chemotherapy or other therapeutic procedure, the 100 percent evaluation shall continue with a mandatory VA examination at the expiration of six months. Thereafter, if there has been no local reoccurrence or metastasis, the disability shall be evaluated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. 
§ 4.115b, DC 7528, Note (2012). There is no clinical evidence of recurrence of the Veteran's prostate cancer. 

Under the renal dysfunction criteria set forth in 38 C.F.R. § 4.115a, a 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assignable for persistent edema and albuminuria with BUN [blood urea nitrogen] 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent rating is appropriate for renal dysfunction requiring 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.

In this case though, the Veteran has not alleged and the evidence does not show that his prostate cancer disability is associated with or has been accompanied by any of the aforementioned symptoms of renal dysfunction. Accordingly, the Board has no basis to assign a higher rating under these criteria.

As for voiding dysfunction, VA regulations provide that the disability is to be rated as a particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. A 40 percent rating is warranted when such impairment requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id.

Under 38 C.F.R. § 4.115a, urinary frequency, a maximum 40 percent rating is warranted when there is a daytime voiding interval less than one hour, or awakening to void five or more times per night. 

Factual Background

VA clinical records dated in January and February 2007 show the Veteran had a history of prostate cancer with radiation treatment. It was reported that since radiation therapy, the Veteran had had urinary urgency and incontinence. He wore occasional pads. 

At a July 2007 VA compensation examination, it was reported that the Veteran's urinary symptoms included urgency and dribbling. His daytime voiding was every 2 to 3 hours, and he had nocturia with voiding 4 times per night. He had urinary incontinence, with use of an appliance. VA and SSA records through 2008 show the Veteran reported urgency and incontinence with use of occasional pads. 

In June 2010 a VA compensation examination was performed. The Veteran's urinary symptoms included urgency, weak or intermittent stream, straining to urinate, dribbling, and urine retention. His daytime voiding was less than 3 hours, and his nighttime voiding was once. He had stress incontinence urinary leakage. It was reported that he did not use Depends that day. 

In a January 2013 VA compensation examination, it was reported that the Veteran had had a diagnosis of prostate cancer with 42 radiation treatments. It was stated that the cancer was in remission. It was reported that the Veteran had voiding dysfunction due to age and benign prostatic hypertrophy. It was stated that the voiding dysfunction caused urine leakage and require absorbent material that must be changed less than 2 times per day. He used Depends as an appliance. The Veteran had increased urinary frequency with daytime viding interval between 1 and 2 hours. His nighttime awakening to void was 3 to 4 times per night. His obstructed voiding included marked hesitancy, slow or weak stream, and markedly decreased force of stream. It was reported that the Veteran did not have a history of recurrent urinary tract or kidney infections. It was stated that the Veteran did not have any other residual conditions or complications due to prostate cancer or prostate cancer treatment. It was stated that in February 2012 the Veteran's PSA was .75. Also it was reported that the prostate cancer did not affect the Veteran's ability to work; he had not worked in 10 years. 

Analysis

Based on these criteria, the Veteran's assertions, considered in conjunction with pertinent medical documents of record, establish that the Veteran's prostate cancer, status post radiation disability picture does not meet the criteria for a rating in excess of 30 percent. 

As previously noted, the Veteran's prostate cancer status post radiation disability has been evaluated as 30 percent disabling. Treatment records consistently show urinary incontinence sand frequency since his radiations treatments. There is also marked voiding hesitancy and decreased force of stream. The Veteran uses absorbent materials, Depends, which he reported using occasionally. Most recently in January 2013, it was reported that the Veteran changed absorbent material less than 2 times per day, he voided between 1 and 2 hours, and he had nighttime awakening 3 to 4 times at night. Under 38 C.F.R. § 4.115b, there is no medical evidence of daytime voiding less than one hour or waking to void five or more times per night. The use of an appliance or wearing of absorbent material which must be changed more than 4 times per day is also not shown. The criteria for a rating higher than 30 percent is not shown here. 

The Board has also considered the Veteran's statements, to include his testimony from the personal hearing that was held in December 2008 regarding his disabling prostate cancer symptoms. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's prostate cancer residuals has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. 

As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). 

The evidence of record reflects that the Veteran's symptomatology for the prostate cancer residuals warrants no more than the disability ratings currently assigned. The preponderance of the evidence is against the claim for a rating in excess of 30 percent for prostate cancer, status post radiation. The Board finds that no higher rating can be assigned pursuant to any other potentially applicable diagnostic code. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

While the Board has thus far confined its analysis to the provisions of the VA Rating Schedule, it recognizes that, in exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Here, the Veteran's voiding and frequency symptoms are expressly contemplated by the aforementioned schedular rating criteria and the Veteran has not alleged otherwise. Therefore, the Board is satisfied that these criteria are adequate to evaluate his service-connected disability and that referral for consideration of extraschedular rating is not warranted.


      ORDER


Entitlement to a rating in excess of 30 percent for prostate cancer, status post radiation, is denied.




____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs