Citation Nr: 1330967 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-27 464A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. What evaluation is warranted for residuals of prostate cancer from August 1, 2008 to May 5, 2009? 2. What evaluation is warranted for residuals of prostate cancer from May 6, 2009 to September 14, 2011? 3. What evaluation is warranted for residuals of prostate cancer from September 15, 2011? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2011, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. The question what evaluation is warranted for residuals of prostate cancer from September 15, 2011 is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From August 1, 2008 to May 5, 2009, the Veteran's residuals of prostate cancer were not manifested by renal dysfunction, urinary tract infection, or voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day, daytime voiding interval between one and two hours or awakening to void three to four times per night. 2. Between May 6, 2009 and September 14, 2011, the Veteran's residuals of prostate cancer were manifested by a nocturnal voiding frequency of three to four times per night. 3. From May 6, 2009 to September 14, 2011, the Veteran's residuals of prostate cancer were not manifested by renal dysfunction, urinary tract infection, or voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day or by a daytime voiding interval less than one hour or awakening to void five or more times per night. CONCLUSIONS OF LAW 1. From August 1, 2008 to May 5, 2009, the criteria for an evaluation in excess of 10 percent for residuals of prostate cancer were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2012). 2. From May 6, 2009 to September 14, 2011, the criteria for an evaluation of 20 percent, but no higher, for residuals of prostate cancer were met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for prostate cancer. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Historically, the Veteran underwent a radical perineal prostatectomy in November 2002. In September 2006, the Veteran filed his claim for service connection for prostate cancer. By rating decision dated in April 2009, service connection was established for prostate cancer, and a 10 percent disability rating was assigned effective August 1, 2008, in accordance with the provisions of 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. Under 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527, postoperative residuals of prostate gland injuries, infections and/or hypertrophy are to be rated as voiding dysfunction or urinary tract infection whichever is predominant. Pursuant to the provisions of 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528, a 100 percent evaluation is warranted when the evidence indicates malignant neoplasm of the genitourinary system. A note to this code states that if there has been no local reoccurrence or metastasis following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, then the disability is to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Review of the medical evidence of record reveals no evidence of reoccurrence or metastasis of the Veteran's prostate cancer. Hence, his prostate cancer residuals are to be evaluated under voiding dysfunction, renal dysfunction, or urinary tract infection, whichever is predominant, pursuant to Diagnostic Codes 7527 and 7528. In this case, the evidence reveals no medical evidence of either renal dysfunction or urinary tract infection due to prostate cancer during the appellate term. Hence, the Veteran's residuals of prostate cancer are most appropriately evaluated in terms of voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. The ratings for urine leakage include a 40 percent rating when urinary leakage require the wearing of absorbent materials which must be changed two to four times per day. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent rating contemplates a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 10 percent rating contemplates a daytime voiding interval between two and three hours, or awakening to void twice per night. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates 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 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. The Veteran underwent VA examination in March 2009 at which time he reported urinary symptoms of dribbling, daytime voiding every two to three hours, and two voids per night. The Veteran denied urgency, hesitancy, difficulty starting stream, weak or intermittent stream, dysuria, straining to urinate, hematuria, urine retention, urethral discharge, renal colic, and urinary leakage. The Veteran also denied history of recurrent urinary tract infections, obstructed voiding, urinary tract stones, renal dysfunction, renal failure, acute nephritis, and hydronephrosis. In a statement received on May 6, 2009, the Veteran reported instances of accidental leakage, frequency, and urgency. The Veteran stated that he carries a hospital urine bottle in his car just in case he needs to go while in his car. The Veteran also reported that it was not unusual for him to wake up at least three to four times to urinate during the night. In a statement received in July 2010, the Veteran reported waking at least three to four times a night to void, voiding during the day approximately every hour or so, and wearing guards for men to help with the leakage issue. After reviewing the totality of the evidence, the Board concludes that an evaluation in excess of 10 percent rating is not warranted prior to May 6, 2009; however, a 20 percent evaluation is warranted from May 6, 2009 to September 14, 2011, for the Veteran's residuals of prostate cancer. In making this determination, the Board finds that a higher rating is not in order prior to May 6, 2009, in light of the appellant's report to the March 2009 examiner, and the absence of any clinical evidence suggesting entitlement to an increased rating under any rating rubric. The Veteran's statements of May 6, 2009 and July 2010 are, however, competent evidence regarding the nature and extent of his post operative voiding dysfunction and urinary frequency. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Furthermore, the Board has no reason to doubt the credibility of the Veteran's statements in this case. The Veteran's symptoms did not, however, at any time meet the criteria required for an evaluation in excess of 20 percent under Diagnostic Code 7528. No evidence has been offered showing either renal dysfunction, voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times a day, or urinary frequency with daytime voiding interval less than one hour or awaking to void five or more times a night. Therefore, the medical findings, as well as the Veteran's own self-reported symptomatology, do not demonstrate that his residuals of prostate cancer were more than 10 percent disabling prior to May 6, 2009, or more than 20 percent disabling between May 6, 2009 and September 14, 2011, on the basis of urinary frequency or voiding dysfunction, as defined by 38 C.F.R. §§ 4.115a and 4.115b. In reaching this decision the Board considered the doctrine of reasonable doubt, however, except to the extent indicated the preponderance of the evidence is against the appellant's claim, and the doctrine is not otherwise for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The question of entitlement to an extraschedular rating is a component of an increased rating claim. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding on the 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. Thun v. Peake, 22 Vet. App. 111 (2008). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Id. In the present case, the Board finds no evidence that the Veteran's service-connected residuals of prostate cancer presented such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to residuals of prostate cancer in the Rating Schedule focus on symptoms of voiding dysfunction or renal dysfunction. As discussed above, such symptomatology describes the Veteran's current disability picture. Thus, the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In the present case, however, there is no evidence of record that reasonably raises a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. ORDER From August 1, 2008 to May 5, 2009, entitlement to an evaluation in excess of 10 percent for residuals of prostate cancer is denied. From May 6, 2009 to September 14, 2011, entitlement to an evaluation of 20 percent, but no higher, for residuals of prostate cancer is granted subject to the law and regulations governing the payment of monetary benefits. REMAND A review of the record reveals that it has been more than four and a half years since the appellant was last afforded a formal VA compensation examination to evaluation the nature and extent of his prostate cancer residuals. Moreover, at his September 15, 2011 travel board hearing, the Veteran testified that he needed to get up during the night up to six times to urinate. Given the passage of time and the appellant's testimony the Board finds that he should be afforded a new VA examination for the purpose of determining the current severity of prostate cancer residuals. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must take appropriate action to secure any and all records pertaining to care the appellant has received for prostate cancer residuals since September 15, 2011. All attempts to secure any evidence identified by the appellant must be documented in the claims file. If the AMC/RO cannot locate all identified records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the Veteran and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the AMC/RO should schedule the Veteran for a VA urological examination by a physician. The examining physician must be provided access to the Veteran's claims folder, to include access to Virtual VA, and a copy of this remand. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating prostate cancer residuals, the examining physician must provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and severity of his prostate cancer residuals. Specific attention is to be directed to recording the frequency of the appellant's urinary voiding during the daytime and at night, as well as to the frequency of any need to change protective undergarments. The examiner must provide a complete rationale for any opinion offered. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 , 3.655 (2012). 4. The AMC/RO must ensure that all medical examination and opinion reports comply with this remand and the questions presented in the request. The AMC/RO must ensure that the examiner documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After ensuring that the duty to assist has otherwise been fulfilled, the RO must readjudicate the remaining issue on appeal. If the benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs