Citation Nr: 1328945 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-22 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the reduction in the evaluation of prostate cancer, status post prostatectomy from 100 percent to 10 percent was proper, to include whether a rating in excess of 10 percent prior to November 14, 2011, and in excess of 40 percent thereafter, is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from July 1968 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that reduced the evaluation for the Veteran's prostate cancer, status post prostatectomy, from 100 percent to 10 percent, effective July 1, 2006. The Board remanded the claim in November 2010 and April 2012 for further development and consideration. In a February 2013 rating decision, the RO assigned a 40 percent rating for residuals of prostate cancer, effective from November 14, 2011. The issue of entitlement to service connection for arthritis of the right knee was referred for adjudication by way of the Board's November 2010 remand. It does not appear that this issue has yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again REFERRED to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was diagnosed with prostate cancer in November 2004, and underwent radical retropubic prostatectomy in March 2005. 2. In May 2005, the RO granted service connection and assigned a 100 percent rating for prostate cancer, effective November 30, 2004. 3. A July 10, 2006 VA outpatient urology treatment report noted cancer of the prostate, status post-operative radical retropubic prostatectomy with chemical cure to date. 4. The medical evidence shows no local reoccurrence or metastasis of prostate cancer after the Veteran's prostatectomy. 5. In a January 2006 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected residuals of prostate cancer from 100 percent to 10 percent; the RO notified the Veteran of this proposed action in a corresponding January 2006 letter. 6. In an April 2006 rating decision, the RO discontinued the 100 percent rating for residuals of prostate cancer, and assigned a 10 percent rating, effective July 1, 2006. 7. In a February 2013 rating decision, the RO assigned a 40 percent rating for residuals of prostate cancer, effective from November 14, 2011. 8. From July 1, 2006, through November 13, 2011, the Veteran's service-connected residuals of prostate cancer have resulted in urinating five to six times daily and nocturia twice per night; however, the usage of appliance or absorbent materials for urine leakage, awakening to void three times per night, or obstructed voiding are not shown. 9. Since November 14, 2011, the Veteran's prostate cancer has not required the use of an appliance or absorbent materials for urine leakage. CONCLUSIONS OF LAW 1. The RO's discontinuance of the 100 percent rating for residuals of prostate cancer was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 4.115b, Diagnostic Code 7528 (2012). 2. The criteria for a rating in excess of 10 percent from July 1, 2006 through November 13, 2011, and a rating in excess of 40 percent thereafter, for residuals of prostate cancer, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The notice requirements of the Veterans Claims Assistance Act (VCAA) require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board observes that an April 21, 2006 pre-rating notice letter, which accompanied the rating decision proposing to decrease the rating for residuals of prostate cancer, provided the Veteran with notice of the proposed reduction and informed him that he could submit medical or other evidence to show why the reduction should not be made. The letter explained that this evidence could be a statement from a physician with detailed findings about his condition. He was also notified that he could request a personal hearing so that he could provide testimony on this matter. He was notified that if he did not request a hearing or submit additional evidence within 60 days, the RO would make a decision based on the evidence of record. In an August 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The claim was readjudicated in September 2008. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the record include the Veteran's service treatment records, VA examination reports, and post service treatment records. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, VA medical records were obtained, a VA examination was conducted and additional opinion obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Adjudication of the claim currently before the Board essentially involves two questions: first, whether the discontinuance of the 100 percent rating for residuals of prostate cancer was proper; and, if so, whether the ratings assigned for residuals of prostate cancer - 10 percent (from July 1, 2006, through November 13, 2011), and 40 percent (from November 14, 2011) - were proper. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Discontinuation of the 100 Percent Rating In this case, a 100 percent rating was assigned under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. The note following this diagnostic code indicates that, following the cessation of surgery, 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 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then a veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. In this case, the evidence shows that the Veteran was diagnosed with prostate cancer in November 2004 and underwent radical retropubic prostatectomy in March 2005. In May 2005, the RO granted service connection and assigned a 100 percent rating for prostate cancer, effective November 30, 2004. A VA genitourinary examination was conducted in December 2005. The Veteran stated that he has no urinary frequency, he urinates five to six times daily, and had nocturia twice per night. He denied hesitancy, abnormal stream, urinary tract infections, or dysuria. A July 2006 VA outpatient urology treatment note indicates that the Veteran reported having a slow stream with no urinary incontinence, but some urgency. The physician's impression indicated cancer of the prostate, status post-operative radical retropubic prostatectomy with chemical cure to date, as well as the Veteran having a high risk for recurrence given his Gleason score. The physician's plan indicates that a cystoscopy was needed to rule out bladder neck contracture. The subsequent August 2006 cystoscopy notes a bladder neck contracture. A November 2006 VA treatment note reveals that the Veteran was voiding very well. A May 2007 VA treatment note indicated that the Veteran had stress urinary incontinence. A June 2010 VA inpatient treatment note indicated that there was no problem with the Veteran's bladder. A VA genitourinary examination was conducted in May 2011. There were no symptoms due to genitourinary disease, urinary symptoms, urinary leakage, history of urinary tract infections, obstructive voiding, or renal dysfunction. The examiner noted that the Veteran's residuals of prostate cancer had no significant effect on the on his occupational functioning or usual daily activities. A VA examination was conducted on November 14, 2011. The Veteran stated that, during the day, he urinates four times at intervals of one hour. At night, he urinates two times at intervals of one hour. He does not experience urinary incontinence. He does not have dysuria, hesitancy/difficulty starting a stream, obstructive voiding, urinary tract infections, dribbling or urethral discharge. He stated that he had intermittent urinary leakage/incontinence, in which no pad/absorbent material was needed. In an April 2012 statement, a VA examiner opined that the Veteran's bladder neck contracture or obstruction noted in August 2006 is a common occurrence of prostate removal and is related to the Veteran's prostate cancer and prostatectomy. The provisions of 38 C.F.R. § 3.105(e) provide for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction and notice giving a veteran 60 days to submit additional evidence and 30 days to request a predetermination hearing. If a hearing is not requested and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2) (2012). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to a veteran of the final action expires. 38 C.F.R. § 3.105(e). As mentioned, the Veteran was notified of the RO's intent to discontinue the 100 percent rating for service-connected residuals of prostate cancer by letter dated on January 30, 2006. He did not request a hearing regarding this issue. Final action to reduce the 100 percent rating to 10 percent was taken pursuant to 38 C.F.R. § 3.105(e) in April 2006. The Veteran was informed of this decision by letter dated on April 21, 2006. The reduction was made effective beginning July 1, 2006. Based on a review of this procedural history, it appears that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Moreover, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). The Veteran has not asserted that these procedural provisions were not followed. Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the discontinuance of the 100 percent rating, which resulted in a reduction of the Veteran's benefits. Here, the VA examination and private medical records show that the Veteran's condition was stable with no recurrence of prostate cancer. For all the reasons above, effective July 1, 2006, the RO appropriately discontinued the 100 percent rating, and rated the Veteran on the basis of the residuals of prostate cancer, as directed by 38 C.F.R. § 4.115b, Diagnostic Code 7528. II. Ratings assigned from July 1, 2006 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, Diagnostic Code 7528 directs that following the cessation of treatment for malignant neoplasms of the genitourinary system, the residuals will be rated as voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7528. However, the Board notes the Veteran is separately rated for service-connected chronic kidney disease with renal insufficiency and hypertension, evaluated as 60 percent disabling. Therefore, renal symptoms cannot be considered in evaluating the Veteran's residuals of prostate cancer under renal dysfunction. 38 C.F.R. § 4.14 (2012) (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Voiding dysfunction is rated 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 are rated as follows: A 20 percent rating is warranted if the evidence shows that the Veteran is required to wear absorbent materials which must be changed less than 2 times per day. If absorbent materials must be changed 2 to 4 times per day, a 40 percent rating is warranted. If an appliance is required, or absorbent materials must be changed more than 4 times per day, a 60 percent rating is warranted. 38 C.F.R. § 4.115a. Regarding frequency, daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. Daytime voiding between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115a. For a rating based on obstructed voiding, a 0 percent rating is assigned for obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year. A 10 percent rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc; (2) Uroflowmetry shows markedly diminished flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115a. With regard to urinary tract infections, a 10 percent rating is warranted for long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic urinary tract infections requiring drainage or frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. 38 C.F.R. § 4.115a. Upon consideration of the medical and lay evidence, the Board finds a higher rating based on the various rating criteria for voiding dysfunction is not warranted for the period from July 1, 2006 through November 13, 2011. In this regard, at no time has the Veteran alleged that he requires a pad or appliance due to urine leakage or incontinence. During this period, he reported he urinates five to six times daily, and had nocturia twice per night. Daytime voiding between one and two hours, or awakening to void three to four times per night was not shown by the evidence. Additionally, while some bladder neck contracture or obstruction was noted, he has not been shown to have urinary retention requiring intermittent or continuous catheterization. Finally, the evidence does not reflect the Veteran suffered from frequent urinary tract infections requiring drainage, hospitalization, or continuous intensive management. Thus, a rating in excess of 10 percent during this period is not warranted based on urinary frequency, urine leakage, obstructed voiding, or urinary tract infection. From November 14, 2011, a higher 60 percent disability rating requires urinary leakage requiring either the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. Again, the evidence of record does not indicate that the Veteran ever required the use of an appliance or absorbent materials. Finally, the evidence does not reflect recurrence or metastasis of his prostate cancer; thus a higher rating based on active malignancy is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the Board finds that the rating criteria contemplate the Veteran's disability picture. The Veteran's service-connected residuals of prostate cancer are productive of urinary frequency, urgency, and occasional leakage, which are manifestations that are contemplated in the rating criteria. Moreover, as noted above, he is separately rated for his kidney disease and he also receives special monthly compensation for loss of use of a creative organ. The rating criteria are therefore adequate to evaluate the Veteran's disability from residuals of prostate cancer and referral for consideration of extraschedular rating is not warranted. In fact, the evidence of record noted that the Veteran's residuals of prostate cancer had no significant effect on his occupational functioning or usual daily activities. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to restoration of a 100 percent disability rating for residuals of prostate cancer is denied. Entitlement to a rating in excess of 10 percent from July 1, 2006 through November 13, 2011 for residuals of prostate cancer is denied. Entitlement to a rating in excess of 40 percent from November 14, 2011 for residuals of prostate cancer is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs