Citation Nr: 1331623 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 12-34 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a higher initial rating for prostate cancer post radical prostatectomy, evaluated as 10 percent disabling from April 1, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from November 1964 to April 1965 and May 1968 to November 1969. The matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A May 2010 rating decision granted service connection for prostate cancer post radical prostatectomy and assigned a 100 percent rating effective January, 29 2010, and a 10 percent rating effective April 1, 2010. A June 2010 rating decision confirmed this decision. The Veteran filed a notice of disagreement (NOD) in February 2011 and was provided with a Statement of the Case (SOC) in November 2012. The Veteran perfected his appeal with a VA Form 9 in December 2012. In a November 2012 rating decision, the RO increased the evaluation for service- connected prostate cancer post radical prostatectomy to 100 percent effective January 29, 2010, 20 percent effective May 1, 2010, and 40 percent effective November 1, 2010. As this increased rating does not constitute a full grant of all benefits possible the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated July 2010 to July 2012. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran underwent a radical prostatectomy in October 2009; an examination to identify the postoperative residuals was not conducted until July 2010. 2. Effective August 1, 2010, the Veteran's prostate cancer post radical prostatectomy has been manifested by urinary frequency of awakening to void four to five times per night. CONCLUSIONS OF LAW The criteria for a 100 percent evaluation for prostate cancer post radical prostatectomy have been met from January 29, 2010 to July 31, 2010; a 40 percent rating is warranted as of August 1, 2010. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's claim for a higher initial rating for prostate cancer post radical prostatectomy arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements and post-service private treatment records have been associated with the claims folder. The Veteran was provided with a VA examination in September 2012. The Board finds that the VA examination report is adequate because the examiner conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's prostate cancer post radical prostatectomy in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). The Veteran's service connected prostate cancer has been evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528 provides a 100 percent rating for malignant neoplasms of the genitourinary system. A note following Diagnostic Code 7528 indicates that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there was no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Renal dysfunction is rated as follows: zero percent, albumin and casts with history of acute nephritis or hypertension noncompensable under Diagnostic Code 7101; 30 percent, 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; and 60 percent, albumin constant with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. 38 C.F.R. § 4.115a. Voiding dysfunction is rated as follows: 20 percent, requiring the wearing of absorbent material which must be changed less than 2 times per day; 40 percent, requiring the wearing of absorbent material which must be changed 2 to 4 times per day; and 60 percent, requiring the use of an appliance or the wearing of absorbent material which must be changed more than 4 times per day. Id. Urinary frequency is rated as follows: 10 percent, daytime voiding interval between 2 and 3 hours or awakening to void 2 times per night; 20 percent, daytime voiding interval between 1 and 2 hours or awakening to void 3 to 4 times per night; and 40 percent, daytime voiding interval less than 1 hour or awakening to void 5 or more times per night. Id. Obstructed voiding is rated as follows: zero percent, obstructed voiding with obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year; 10 percent, marked obstructive symptomatology; and 30 percent, urinary retention requiring intermittent or continuous catheterization. Id. Urinary tract infection (UTI) is rated as follows: 10 percent, long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management; and 30 percent, recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id. Background Private medical records show that the Veteran was diagnosed with prostate cancer in August 2009. The Veteran underwent a radical prostatectomy in October 2009. A February 2010 private medical record shows that the Veteran was having no irritable voiding symptoms. A July 2010 VA treatment record shows that the Veteran reported that his October 2009 prostatectomy resulted in urinary urgency and frequency that disrupted his sleep three or more times per night. A November 2010 VA treatment record shows that the Veteran reported his prostatectomy resulted in urinary urgency and frequency. He reported that he wears a pad in case of accidents because he will have strong urges to urinate and cannot always make it to the bathroom in time. He also reported that he wakes up four to five times per night to urinate. On his February 2011 NOD the Veteran reported that since his treatment for prostate cancer he has to wear absorbent materials during the day and awakens to void four to five times per night. The Veteran was afforded a VA examination in September 2012. The Veteran reported a radical prostatectomy in October 2009 and denied any other treatment. He reported that his last prostate specific antigen (PSA) test was in October of 2011 and it was 0.0. The VA examiner noted that the Veteran's prostate cancer was in remission. The examiner also noted that the Veteran's urine leakage did not require absorbent materials but did require two pads per day and one per night. The examiner noted that the Veteran's voiding dysfunction did not require the use of an appliance. The examiner also noted that the Veteran's urinary frequency was between one and two hours during the day and that the Veteran awakened three to four times per night. The examiner also noted that the Veteran's voiding dysfunction did not cause signs or symptoms of obstructed voiding and the Veteran did not have a history of recurrent symptomatic urinary tract infections or kidney infections. On his December 2012 VA Form 9, the Veteran reported that he has to wear a Depends during the day and at night. He reported that he has to void four to five times a day and four to five times a night. The Veteran also reported that when he rises from a sitting to a standing position he will leak urine and also when he tries to climb stairs. Analysis As an initial matter, the Board notes that in this case, the RO did not follow the procedural provisions of 38 C.F.R. § 3.105(e) for reduction of the 100 percent rating. However, that regulation applies only where there will be a reduction or discontinuance of payments already being made. This case involves an appeal from the initial rating action that granted service connection prostate cancer post radical prostatectomy and thus payments were not being made at the time of the May 2010 rating decision. Therefore, the Board concludes that 38 C.F.R. § 3.105(e) does not apply to this case and that staged ratings are appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). The Board also notes that the RO did not follow the provisions of the Note to 38 C.F.R. § 4.115b, Diagnostic Code 7528 in its May 2010 rating decision. Specifically, it reduced the 100 percent evaluation without affording the Veteran an examination six months after surgical treatment ended; under the regulation such examination is mandatory. At the time of the February 2010 private treatment record, six months had not passed following cessation of treatment, and thus the 100 percent evaluation could not be reduced based on that record. Subsequently, the Veteran reported in a July 2010 treatment record that he urinates three to four times per night. The Board finds that this treatment record satisfied the requirements of the Note to Diagnostic Code 7528 (since at least six months had passed since therapeutic procedure), and therefore the reduction of the 100 percent rating can properly be made as of the date of the July 2010 examination. Thus, the Board concludes that the 100 percent rating for the Veteran's post radical prostatectomy must be continued through the July 2010 VA treatment record. Thereafter, in accordance with the Note to Diagnostic Code 7528, the disability must be rated on residuals. The Board finds that the medical evidence of record, and the Veteran's own statements, reveal that the Veteran's predominant area of disability is voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Under urinary frequency, a 40 percent rating is warranted when daytime voiding interval is less than 1 hour or when there is awakening to void 5 or more times per night. A July 2010 VA treatment record shows that the Veteran reported urinary frequency of three or more times a night. A November 2010 VA treatment record and the Veteran's VA Form 9 show that the Veteran reported urinary frequency of four to five times a night. A September 2012 VA examination report shows that the Veteran reported urinary frequency of one to hours during the day and awakening three to four times a night. The Board finds that although the medical evidence of record contains varying reports of urinary frequency, it is reasonable to assume that the Veteran has awakened four to five times per night since August 2010. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an initial rating of 40 percent, but no more, is warranted effective August 1, 2010. The Board notes that a 40 percent rating is the maximum rating available under the criteria pertaining to urinary frequency. This rating is even higher than the maximum possible ratings for obstructed voiding (30 percent) and urinary tract infection (also 30 percent). In addition, the Board recognizes that under the criteria pertaining to urine leakage, a 60 percent rating is warranted for the use of an appliance or the wearing of material that must be changed more than 4 times each day. The Board notes that the Veteran reported on his NOD and VA Form 9 that he wears absorbent materials like Depends, however, he did not report that he changes them more than four times a day. Furthermore, the September 2012 VA examiner noted that the Veteran did not use an appliance or absorbent materials. As such, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent at any time since August 1, 2010. The Board has considered whether a separate rating is warranted for the Veteran's radical prostatectomy scar. The September 2012 examiner noted that the scar was not painful, unstable, nor had a total area greater than 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2013). Accordingly, a separate evaluation for a radical prostatectomy scar is not warranted. The Board has also considered rating the Veteran on an extraschedular basis. The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 RO or Board must determine whether the claimant's exceptional 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 and that picture has attendant thereto 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the schedular evaluation assigned for the Veteran's service-connected prostate cancer post radical prostatectomy is adequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected prostate cancer post radical prostatectomy. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. In light of the above, referral for consideration of an extraschedular rating is not warranted for this claim. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. However, the Veteran has not asserted that his unemployment is due to his service-connected prostate cancer post radical prostatectomy. The Board notes that the Veteran is retired and previously worked in wholesale plumbing parts sales. As there is no evidence that the Veteran's service-connected prostate cancer post radical prostatectomy precludes employment, the question of entitlement to a TDIU is not raised. ORDER A 100 percent evaluation for prostate cancer post radical prostatectomy is granted from January 29, 2010 to through July 31, 2010; and a 40 percent evaluation is granted as of August 1, 2010, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs