Citation Nr: 1331877 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-01 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE 1. Entitlement to rating in excess of 60 percent service-connected status post open radical retropubic prostatectomy, prostate cancer with erectile dysfunction (residuals of prostate cancer). 2. Entitlement to a separate rating for scar of the umbilical area due to prostatectomy (prostatectomy scar). ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from November 1968 to June 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for residuals of prostate cancer, and special monthly compensation (SMC) based on loss of use of a creative organ. A December 2010 rating decision granted an increased, 60 percent, rating. The Veteran continues to appeal for a higher rating for this disability. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The service-connected residuals of prostate cancer are predominantly characterized by incontinence. 2. The Veteran has one linear vertical scar below the umbilicus due to surgery for his service-connected prostate cancer; it was noted as nontender in December 2009, but was reportedly tender on the June 26, 2012 VA examination. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 60 percent for the service-connected 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 (2013). 2. The criteria for a separate 10 percent disability rating, and not higher, for the prostatectomy scar are met from June 26, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). However, the appeal arises from the initial award of service connection. In cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. In any event, VCAA compliant notice was furnished to the Veteran in January 2010 and June 2012 letters. Concerning the duty to assist, VA has obtained service treatment records, post-service treatment records, and Social Security Administration (SSA) records. In addition, the Veteran was afforded VA physical examinations. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, 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 notice is not shown to have affected the essential fairness of the adjudication 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, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all 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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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; 38 C.F.R. § 4.1. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of Prostate Cancer The Veteran filed a claim for service connection for prostate cancer in November 2009. A February 2010 rating decision granted service connection for status post open radical retropubic prostatectomy with erectile dysfunction. The Veteran underwent the prostatectomy for prostate cancer in May 2007. He underwent no subsequent treatment for the cancer. The Veteran's residuals of prostate cancer are evaluated as 60 percent disabling under Diagnostic Code 7528 (malignant neoplasms of the genitourinary system). Under that Code, a 100 percent rating is assigned for cancer for six months after the cessation of therapeutic procedures. Then, if there has been no local reoccurrence or metastasis, the residuals are rated based on voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Voiding dysfunction is to be rated on the basis of urine leakage, frequency, obstructed voiding, or urinary tract infection. The rating criteria for urinary frequency, obstructed voiding, and urinary tract infection do not provide for a rating higher than 40 percent, 30 percent, and 30 percent, respectively. The criteria for urinary leakage are as follows: continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a maximum 60 percent rating. 38 C.F.R. § 4.115a. In this case, the predominant area of genitourinary impairment was voiding dysfunction. The Veteran is currently in receipt of a 60 percent evaluation for residuals of his prostate cancer. This is the maximum rating available based on voiding dysfunction, urinary frequency, obstructed voiding, and urinary tract infection criteria. Higher ratings of 80 percent and/or 100 percent are only available based on renal dysfunction or active cancer. Renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80mg% (milligrams per 100 milliliters); or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion warrants an 80 percent rating. 38 C.F.R. § 4.115a. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN (blood urea nitrogen) more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Id. A VA examination was conducted in December 2009. The last treatment for prostate cancer was noted to have been in 2007. The residuals from the treatment received are noted as impotence and incontinence. The malignancy was in full remission. During the day the Veteran urinated eight times and during the night he did not urinate. He did not have any problems starting urination. He had urine incontinence and a pad was required as often as three to four times per day. A urinalysis indicated a trace of glucose, trace of ketones, and presence of protein. The examiner indicated that the urinalysis was not clinically significant, and it is not as least as likely as not secondary to the prostate cancer. Blood testing indicated that the Veteran's BUN was 14 mg%, and his creatinine was 1.04 mg%. A VA examination was conducted in March 2011. The Veteran complained of urinary incontinence, fatigue, and anorexia. He reported urinary frequency five to six times per day, and two to three times per night. He used between four to six absorbent pads per day, and two per night. The examiner noted there was no history of urinary tract infections, obstructive voiding, or renal dysfunction. Physical examination revealed he appeared healthy, moved freely and was in no acute distress. The examiner noted that there were no specific limitations regarding his activities of daily living or occupation based on this examination. The examiner also noted that it is less likely as not that the Veteran's complaints of bowel incontinence were caused by his prostate cancer or subsequent surgery. A VA examination was conducted in June 2012. The Veteran had a voiding dysfunction due to his prior prostate surgery that required him to use absorbent material that had to be changed more than four times daily. He noted that the Veteran did not require the use of an appliance for the voiding dysfunction, which caused increased urinary frequency of daytime voiding interval between two and three hours and nighttime awakening to void three to four times. He also manifested urinary hesitancy, and a slow, weak, and decreased force of stream. He did not have urinary tract infections. A urinalysis was noted to have been normal. Blood testing indicated that the Veteran's BUN was 13 mg%, and his creatinine was 0.70 mg% (low). The examiner stated that the service-connected disability impacted his ability to work in that he may have to stay home to stay near a bathroom. The Veteran clearly does not meet the 80 or 100 percent rating criteria based on renal dysfunction. His symptomatology is not productive of persistent edema and albuminuria with BUN 40 to 80mg% or creatinine 4 to 8mg%, nor is there evidence of generalized poor health characterized by lethargy, weakness, weight loss, or limitation of exertion. Furthermore, the evidence does not show that the Veteran requires regular dialysis, nor does it show that the Veteran cannot perform more than sedentary activity due to any of the following: persistent edema and albuminuria, BUN more than 80 mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. The Veteran did complain of fatigue and anorexia on March 2011 VA examination; however, the examiner noted that the Veteran appeared healthy, moved freely, and was in no acute distress. The March 2011 examiner also noted that there were no specific limitations regarding his activities of daily living or occupation based on this examination. A 60 percent evaluation is the highest rating provided for voiding dysfunction. As explained above, the Veteran's disability is not manifest by renal dysfunction and a higher rating on that basis is not warranted. Moreover, the Veteran did not file an application for service connection for his prostate cancer until more than two years after his prostatectomy, and his cancer has not been shown to be active during the course of the claim. Thus, a 100 percent rating under Diagnostic Code 7528 is not warranted. At no time during the pendency of this claim, has the disability been more disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. Scar Disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). It is not in violation against the rule against pyramiding addressed in 38 C.F.R. § 4.14 (2013) for the Board to consider assigning a separate evaluation for the Veteran's postoperative scar if the scar causes separate symptomatology. In the present case, the current VA treatment records are silent for any complaints of or treatment for the Veteran's scar. At the VA examination in December 2009, a deep scar of the anterior trunk that was linear and measured ten centimeters long was noted. The examiner not that the scar was not painful. There was no skin breakdown, inflammation, edema, keloid formation, limitation of motion, or loss of function. At the VA scars examination in June 2012, a five centimeter, linear, vertical scar below the umbilicus was noted upon examination which was noted to be tender but stable. The examiner also noted that the scar did not limit any function; and there were no pertinent findings, complications, signs or symptoms associated with the Veteran's scar besides tenderness. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. 38 C.F.R. § 4.118. As the June 26, 2012 VA examination revealed a tender scar, a separate 10 percent rating under Diagnostic Code 7804 is warranted for the Veteran's scar from that date. The Veteran's scar was noted to be nontender at the time of the December 2009 examination; thus, a separate compensable rating is not warranted prior to June 26, 2012. Additionally, a higher rating is not warranted for the scar. The Veteran's scar has been described as linear; thus, Diagnostic Codes 7801 and 7802 are not for application. Diagnostic Code 7804 provides higher ratings if there are more than 2 painful scars. However, the Veteran has only a single surgical scar from his prostatectomy. Therefore, a higher rating under Diagnostic Code 7804 cannot be assigned. Diagnostic Code 7805 provides that, for other scars (including linear scars) the evaluation of any disabling effect(s) not considered in a rating provided under other scar diagnostic codes should be accomplished under an appropriate diagnostic code. 38 C.F.R. § 4.118. As the VA examiner noted that the scar did not limit any function; and there were no pertinent findings, complications, signs or symptoms associated with the Veteran's scar other than tenderness, a higher rating in accordance with Diagnostic Code 7805 is not warranted. Other Considerations The Board has also 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) (2013); 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 rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. While the Veteran reported on one VA examination that he cannot perform activities of daily living because he must stay home or near a bathroom at all times, the record reflects that he actually assists his son at a restaurant 4 hours per day 4 days per week. In any event, the Veteran's assigned ratings contemplate frequency and incontinence, and a painful scar. He is not shown to have renal dysfunction, and is in receipt of special monthly compensation for loss of use of a creative organ. The examiner noted the Veteran's claimed bowel incontinence is not related to his prostate cancer residuals. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. An August 2012 rating decision denied the Veteran's claim for a total disability rating based on unemployability. The Veteran has not appealed that decision, nor has he alleged since that time that he unemployable. Accordingly, no further action on this question is necessary. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching the above conclusions, 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An increased evaluation in excess of 60 percent for the service-connected residuals of prostate cancer, status post radical prostatectomy, is denied. From June 26, 2012, entitlement to a separate 10 percent for rating prostatectomy scar is granted, subject to regulations governing the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs