Citation Nr: 1328949 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-09 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of prostate cancer. REPRESENTATION Veteran represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The January 2008 rating decision granted service connection for residuals of prostate cancer, and assigned a noncompensable initial rating, effective from October 1, 2007. In April 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran also submitted additional written evidence at the hearing, along with a signed waiver of RO consideration. As such, this evidence is accepted for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In a January 2013 rating decision, the RO granted an increased evaluation of 10 percent for service-connected residuals of prostate cancer, erectile dysfunction and voiding dysfunction, effective from October 1, 2007. As this rating is not the maximum rating available for the disability, the claim remains in appellate status, and the Board has re-characterized the issue as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The January 2013 rating decision also denied entitlement to special monthly compensation based on account loss of use of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a). As the Veteran has not disagreed with the denial of that issue, it has not been developed for appellate consideration by the Board at this time. FINDING OF FACT The competent evidence of record demonstrates that the Veteran's service-connected residuals of prostate cancer are manifested by awakening to void two times per night, and erectile dysfunction. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of prostate cancer have not been 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 FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable decision of the Agency of Original Jurisdiction on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. However, as the issue on appeal stems from a notice of disagreement with the initial rating assigned, following the award of service connection, there exists no duty to provide additional VCAA notice under 38 U.S.C.A. § 5103. 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105 (West 2002). A January 2010 Statement of the Case set forth the relevant diagnostic codes for rating the disability at issue and included a description of the rating formula for the current evaluation and for all other higher evaluations. The Veteran was thus informed of what was needed not only to achieve the next higher schedular rating but also what was needed to obtain all schedular ratings above that assigned. Therefore, the Board finds the Veteran has been informed of what is necessary to achieve a higher rating for the service-connected disability at issue. See Bernard, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996). Duty to Assist With regard to the duty to assist, the Veteran's claims file contains service treatment records, VA examination reports, VA treatment records, private treatment records, and lay testimony. In August 2012, the Board remanded the Veteran's claim for additional development. Specifically, the Board directed that the RO/AMC provide the Veteran with notice as to the rating criteria for voiding dysfunction and for entitlement to special monthly compensation under 38 U.S.C. § 1114(k). 38 C.F.R. § 3.350 (a)(1). In addition, the Board instructed the RO/AMC request that the Veteran identify and provide authorization for all medical providers from whom he had received treatment for voiding dysfunction, erectile dysfunction, and/or prostate cancer residuals. Then, the RO/AMC was to attempt to obtain all identified records and associate them with the claims file. The evidence demonstrates that an October 2012 letter provided the appropriate notice. However, there is no indication in the record that the Veteran responded to the notice. Finally, the Board requested that the RO/AMC schedule the Veteran for a VA examination to determine the extent of his prostate cancer residuals, if any. In addition to noting any voiding dysfunction, the examiner was asked to provide an opinion as to whether it was as likely as not that the Veteran had erectile dysfunction and any other symptoms as a residual of prostate cancer. The record shows the Veteran underwent VA examination in November 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds the November 2012 VA examination adequate as it was predicated on a review of the Veteran's claims file and the results of an adequate and complete physical examination. Additionally, clinical findings pertinent to the applicable criteria for rating the Veteran's increased evaluation claim were provided. Further, the November 2012 examination report provided findings relevant to the Veteran's functional impairment in daily life. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Hence, the examination provided findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining an examination or opinion on appeal has been met. 38 C.F.R. § 3.159(c)(4). Furthermore, the Board finds the AMC substantially complied with the November 2012 remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issues and asked questions to solicit information about the potential availability of any pertinent outstanding evidence. The Veteran was assisted at the hearing by an accredited representative from the Delaware Commission of Veterans' Affairs. The representative asked the Veteran specific questions regarding his symptoms of and treatment for his residuals of prostate cancer. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Rating Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2012). Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for increased rating claims when the factual findings show distinct time periods where the service-connected disabilities exhibit symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The January 2013 rating decision granted an initial evaluation of 10 percent for residuals of prostate cancer, erectile dysfunction and voiding dysfunction, under Diagnostic Code 7528, effective October 1, 2007. 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 of voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2012). In this case, there is no clinical evidence of recurrence of the Veteran's prostate cancer. In addition, 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 symptoms of renal dysfunction. Accordingly, the Board will rate the Veteran's disability based on residuals of voiding dysfunction. Per VA regulations, voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. With respect to continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent disability rating is warranted if the evidence shows that the Veteran is required to wear absorbent materials which must be changed less than two times per day. If absorbent materials must be changed two to four times per day, a 40 percent rating is warranted. If an appliance is required, or absorbent materials must be changed more than four times per day, a 60 percent rating is warranted. 38 C.F.R. § 4.115a. Regarding urinary 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, and 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 obstructed voiding, urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. For marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post void residuals greater than 150 cubic centimeters (cc); uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; or stricture disease requiring periodic dilatation every two to three months, a 10 percent evaluation is warranted. Obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a noncompensable evaluation. Id. Additionally, deformity of the penis, with erectile dysfunction, warrants a 20 percent rating under 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2012). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Analysis As stated above, the Veteran's service-connected residuals of prostate cancer are currently assigned an initial evaluation of 10 percent under Diagnostic Code 7528 based upon voiding dysfunction. The Veteran asserts that he is entitled to a higher evaluation. In July 2007, the Veteran underwent a VA genitourinary examination. There was no reported history of recurrent urinary tract infections, obstructed voiding, urinary tract stones, renal dysfunction or failure, acute nephritis, or hydronephrosis. There were no general systemic symptoms due to genitourinary disease, urinary symptoms or leakage, cardiovascular symptoms, or erectile dysfunction. Physical examination revealed no abdominal or flank tenderness, normal perineal sensation, and no peripheral edema. The Veteran's bladder, anal and rectal walls, and urethra were normal. The following were also normal: bulbocavernous reflex; right dorsalis pedis pulse; right posterior tibial pulse; left dorsalis pedis pulse; and left posterior tibial pulse. The Veteran's penis, testicles, prostate, epididymis/spermatic cord/scrotum, seminal vesicles, and cremasterix reflex were normal. There were no other significant findings. Laboratory results showed creatinine of 1.0 and BUN of 9. The VA examiner found the Veteran's service-connected disability did not affect his usual daily activities. The VA examiner noted that the Veteran did not report any symptoms, to include urinary incontinence, urinary tract infections, or erectile dysfunction. The Veteran did not have any reoccurrence of cancer or the need for no further therapeutic procedures, and he had normal urine without hematuria. In April 2012, the Veteran testified that he was still undergoing treatment every six months and that tests were reflecting fluctuating prostate-specific antigen. The Veteran denied having any leakage and stated that he did not use any types of devices, pads, or absorbent pads. He reported that he woke up at least a couple of times a night, although it did not occur every night. The Veteran stated that on average he woke up once. During the day, he reported that it varied how many times he had to use the restroom. He stated that he would stop frequently to use the restroom on long trips. The Veteran asserted that his urge to go to the bathroom was affecting his daily activities, to include traveling and working. He reported that it affected him at work as he had to take a lot of restroom breaks but that he could work it into his schedule. Pursuant to the Board remand, the Veteran underwent additional VA examination in November 2012. The VA examiner recorded that the Veteran's prostate cancer was in remission. The Veteran denied voiding dysfunction, a history of recurrent symptomatic urinary tract or kidney infections, or retrograde ejaculation. The Veteran reported occasional erectile dysfunction and that he was able to achieve an erection sufficient for penetration and ejaculation. The Veteran denied retrograde ejaculation and any other residual conditions or complications. The VA examiner noted that diagnostic testing in September 2012 reflected a PSA of 0.65. The VA examiner opined that the Veteran's intermittent erectile dysfunction was as likely as not a residual of his prostate cancer, as erectile dysfunction was a known complication of radiation treatment for prostate cancer. A March 2012 private treatment record shows the Veteran denied a slow stream, hesitancy, straining, a split stream, frequency, and urgency. The Veteran reported getting up two times per night to urinate and having a history of blood in his urine. He denied blood clots, trouble urinating, any burning sensation when he urinated, pain, and recent unwanted weight loss. The Veteran asserted that he got up too often at night to urinate. He reported that he did have nights when he did not get up to urinate at all. The Veteran did not usually have swelling in his hands and feet during the day. He did not have to strain or bear down to start his urinary stream, and he had not been treated with medications in the past for lower urinary tract symptoms. The Veteran denied ever having the sensation of not emptying his bladder completely after finishing urinating. He never had to urinate again less than two hours after he had finished urinating. He did not have to stop and start again several times when he urinated, and he never found it difficult to postpone urination. As stated above, the Veteran's service-connected residuals of prostate cancer are currently evaluated as 10 percent disabling. Although he has erectile dysfunction, he has not been shown to have associated deformity of the penis so as to warrant a 20 percent rating under Diagnostic Code 7522. Therefore, to warrant a higher evaluation, the evidence must show one or more of the following: the use of absorbent materials which must be changed less than two times per day or two to four times per day; the use of an appliance or absorbent materials which must be changed more than four times per day; daytime voiding between one and two hours; awakening to void three to four times per night; daytime voiding interval less than one hour; awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization. In July 2007, the Veteran denied urinary symptoms and leakage, to include urinary incontinence, and urinary tract infections. The Veteran also did not report the use of absorbent materials. At the April 2012 hearing, the Veteran denied any leakage and reported that he did not use any types of devices, pads, or absorbent pads. In November 2012, the Veteran denied voiding dysfunction. The March 2012 private treatment record indicates the Veteran denied a slow stream, hesitancy, straining, a split stream, frequency, and urgency. As such, the evidence does not demonstrate a higher evaluation is warranted based upon continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence. With respect to urinary frequency, the Veteran testified that it varied how many times he had to use the restroom during the day. He reported having to stop frequently to use the restroom on long trips and asserted that his urge to go to the bathroom affected his daily living activities as he had to take a lot of restroom breaks at work. However, the Veteran stated that he could fit his restroom breaks into his schedule. He did not have to strain or bear down to start his urinary stream, and he had not been treated with medications in the past for lower urinary tract symptoms. In March 2012, the Veteran denied ever having the sensation of not emptying his bladder completely after finishing urinating or having to urinate again less than two hours after he had finished urinating. He also reported that he did not have to stop and start again several times when he urinated, and he never found it difficult to postpone urination. Upon review, the Board finds the evidence does not warrant an evaluation in excess of 10 percent for urinary frequency. Concerning obstructed voiding, in July 2007 the Veteran denied a history of obstructed voiding and any general systemic symptoms due to urinary symptoms or leakage. In November 2012, the Veteran denied voiding dysfunction, and in March 2012, the Veteran denied hesitancy, straining, trouble urinating, having the sensation of not emptying his bladder completely after finishing urinating, and having to urinate again less than two hours after he had finished urinating. In addition, he did not have to stop and start again several times when he urinated, and he never found it difficult to postpone urination. As a result, an evaluation in excess of 10 percent is not warranted for obstructed voiding. The Board recognizes the Veteran is competent to report the effects of his prostate cancer residuals on his daily functioning. However, these statements must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence demonstrates consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. Consequently, when considering the overall evidence of record, including the lay statements and medical evidence, the Board finds that the Veteran's service-connected residuals of prostate cancer do not warrant an evaluation in excess of 10 percent. 38 C.F.R. § 4.115a, b, Diagnostic Codes 7522, 7528. Given the above record, the Board concludes that the evidence demonstrates that throughout the pendency of the appeal, the Veteran's residuals of prostate cancer were manifested by erectile dysfunction and awakening to void two times per night. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.115b, Diagnostic Codes 7522, 7528. As the record contains no evidence showing the Veteran is entitled to a higher rating at any point during the instant appeal, staged ratings are not appropriate. See Hart, 21 Vet. App. 505. As a result, the Board finds a schedular evaluation in excess of 10 percent is not warranted at any time during the pendency of the appeal. Extraschedular consideration The Board has also considered whether the Veteran is entitled to consideration of an extraschedular rating. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran'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 evaluate a veteran's disability picture that 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. With respect to the first prong of Thun, there is no demonstration in the lay or clinical evidence in this case that the Veteran's symptoms present an exceptional disability picture which renders the available respective schedular evaluations inadequate. The Veteran's service-connected residuals of prostate cancer are evaluated as a dysfunction of the genitourinary system, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.115b, Diagnostic Codes 7522, 7528. Throughout the pendency of the appeal, the Veteran's residuals of prostate cancer were manifested by erectile dysfunction and awakening to void two times per night. In addition, the record does not show that the Veteran required frequent hospitalization for problems associated with his residuals of prostate cancer. As a result, the Board finds the Veteran's complaints are contemplated in the diagnostic code criteria for assignment of a schedular rating, and the Veteran is not entitled to a referral for extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Rather, the Veteran asserted that although he had to take frequent restroom breaks while at work, he could fit them into his schedule. Accordingly, the Board concludes that a claim for a TDIU has not been raised. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against an evaluation in excess of that already assigned, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial evaluation in excess of 10 percent for residuals of prostate cancer is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs