Citation Nr: 1334145 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-17 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 20 percent for adenocarcinoma of the prostate, from November 1, 2009, forward. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from May 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO initially characterized this claim as whether the RO properly reduced the 100 percent evaluation assigned residuals of prostate cancer, status post neoadjuvant therapy and external beam radiation therapy, to 20 percent. It later recharacterized this claim as previously shown because the Diagnostic Code (DC) under which residuals of the cancer are rated contains a temporal element - its criteria mandate the assignment of a 100 percent evaluation for a certain period of time followed by a VA examination to determine the degree to which any residuals are disabling. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (holding rating reduction criteria inapplicable when reduction of a 100 percent rating is mandated by expiration of a time period set in the rating schedule); but cf. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992) (holding a rating reduction improper in a case where the RO reduced an evaluation assigned a psychiatric condition from 100 to 10 percent without following procedural guidelines pertaining to rating reductions, in part because the rating criteria did not contain a temporal element). The Veteran also initiated an appeal of the RO's January 2010 rating decision denying multiple claims for increased evaluations and a total disability evaluation based on individual unemployability. However, after the RO issued a statement of the case (SOC) on those claims in December 2011 and March 2013, the Veteran did not perfect his appeal by submitting to the RO a VA Form 9 (Appeal to Board of Veterans' Appeal) or any other document that could be construed as a substantive appeal. These claims are thus not now before the Board for appellate review. There is no additional pertinent evidence in the Veteran's electronic claims file (Virtual VA) for consideration in support of this claim. FINDINGS OF FACT 1. Although the Veteran's prostate-specific antigen (PSA) has been trending upward since the Veteran's prostate cancer treatment, the upward trend does not meet the criteria for a recurrence. 2. Residuals of the Veteran's prostate cancer include frequent daytime voiding (every two to three hours) and nighttime voiding (three to four times nightly). CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for residuals of adenocarcinoma of the prostate are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). If, however, the RO grants service connection and, in response, the Veteran appeals a downstream element of the claim, including the evaluation assigned the disability or the effective date assigned the grant, then VA does not have to provide a claimant additional VCAA notice concerning those downstream elements. This is so because the initial intended purpose of the notice has been served. The claim as it arose in its initial context has been granted or substantiated. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to Goodwin and its progeny, in such a case, instead of issuing an additional VCAA notice letter pertaining to the downstream element, under 38 U.S.C.A. § 7105(d), the RO is required to issue a SOC if the disagreement is not resolved. Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a SOC or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO in this case provided the Veteran VCAA notice on his claim for service connection for prostate cancer by way of letter dated in April 2008. In February 2010, after the Veteran disagreed with the disability evaluation initially assigned for residuals of the prostate cancer (i.e., after the expiration of the assignment of a 100 schedular percent evaluation), the RO issued a statement of the case on that downstream element. The content of these documents reflects compliance with the pertinent statutory and regulatory provisions and case law. Therein the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate it, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claim pursuant to this duty. The RO also provided him all necessary information on effective dates in the event a higher initial evaluation is granted for this disability. As well, the RO identified the evidence it had received in support of the Veteran's claim and the evidence it is responsible for obtaining. The RO indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified its sources. The RO also noted that, ultimately, it is the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. In a remand issued in October 2012, the Board provided the Veteran additional notice by emphasizing the importance of obtaining all of the Veteran's treatment records and a medical opinion addressing the severity of the residuals of his prostate cancer. The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions. B. Duty to Assist VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). In this case, the RO obtained all evidence the Veteran identified as being potentially pertinent to his claim, including service treatment records and post-service VA treatment records. The Veteran does not allege there are outstanding records still needing to be secured in support of this claim. In addition, the RO afforded the Veteran VA examinations, during which examiners discussed the severity of the residuals of his prostate cancer. The Veteran is not challenging the adequacy of the VA examinations. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). II. Analysis By rating decision dated December 2008, the RO granted the Veteran service connection for prostate cancer. The RO initially assigned that disability, now characterized as residuals of prostate cancer, status post neoadjuvant therapy and external beam radiation therapy, a 100 percent evaluation from April 23, 2008 and a 20 percent evaluation from November 1, 2009, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 (2013) A. Schedular Evaluation The Veteran seeks a higher initial evaluation for residuals of his prostate cancer. According to a written statement dated June 2009, he disputes the RO's action decreasing the initial evaluation assigned that disability from 100 to 20 percent. According to written statements dated or received in June and August 2009, his condition has not gotten better and, secondary to the radiation therapy, he is a different person. Allegedly, he still suffers residual effects of his cancer and adjunct treatment, including weakness most of the time, hot flashes, a loss of sleep, and nocturnal urination. He contends that he is unable to work due to these symptoms combined with those of his other service-connected disabilities. According to a written statement of his daughter received in April 2009, the disease is taking the Veteran over, changing him, causing him to pass out, shake more daily, forget things, including if and when he took his medication and ate, lose control of his bladder, and break out in sweats, and has resulted in him lying around a lot. Considering the Veteran's and his daughter's statements in conjunction with all other pertinent evidence in the claims file, including all medical documents, and applicable statutes and regulations, the Board finds that the preponderance of the evidence is against this claim. Although the Veteran's prostate-specific antigen (PSA) has been trending upward since his prostate cancer treatment, the upward trend does not meet the criteria for a recurrence. Moreover, post-therapy residuals of the Veteran's prostate cancer include frequent daytime voiding (every two to three hours) and nighttime voiding (three to four times nightly), but not so frequent as to allow for an initial evaluation in excess of 20 percent under DC 7528. Disability evaluations are determined by evaluating the extent to which a claimant's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2013). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. As previously indicated, the Veteran's prostate cancer is evaluated under DC 7528. DC 7528 provides that a 100 percent evaluation will be assigned while malignant neoplasms are present and will continue to be applied beyond cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures for six months, at which time a mandatory VA examination will take place. 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), which pertains to reducing disability evaluations. If there has been no local reoccurrence or metastasis, residuals are to be evaluated on voiding dysfunction or renal dysfunction, whichever is predominant, as set forth under 38 C.F.R. 4.115a. 38 C.F.R. § 4.115(b) (2013). Voiding dysfunction is evaluated based on the particular condition involved, to include urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2013). A 20 percent evaluation is assignable for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the wearing of absorbent materials, which must be changed less than two times per day. A 40 percent evaluation is assignable for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the wearing of absorbent materials, which must be changed two to four times per day. Id. Urinary frequency is evaluated based on voiding intervals and time of voiding. A 20 percent evaluation is assignable for a daytime voiding interval between one and two hours, or; awakening to void three to four times nightly. A 40 percent evaluation is assignable for a daytime voiding interval less than one hour, or; awakening to void five or more times per night. Id. Urinary tract infections, representative of obstructed voiding, are evaluated based on the treatment the infection requires. A 30 percent evaluation is assignable for a recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Id. A 30 percent evaluation is also assignable for urinary retention requiring intermittent or continuous catheterization. Id. With regard to renal dysfunction, a 30 percent evaluation is assignable when there is 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 DC 7101. A 60 percent evaluation is assignable for constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under DC 7101. An 80 percent evaluation is assignable for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. A 20 percent evaluation is also assignable for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522 (2013). This evaluation is the maximum assignable under DC 7522. Special monthly compensation (SMC) is payable for erectile dysfunction (loss of use of a creative organ) when service connection has been granted for such dysfunction. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a)(1) (2013). The Veteran was suspected of having prostate cancer in 2007, after he had elevated PSA screenings of 6.9 (May) and 8.81 (November). A February 2008 prostate biopsy confirmed adenocarcinoma, moderately poorly differentiated with 10 percent tumor involvement on each side. This finding necessitated radiation and neoadjuvant hormone suppression therapy from June 2008 to September 2008. Thereafter in early September, his PSA was 0.26, but he began to report never feeling well and mentioned mental health complaints. He also reported urinary urgency (voids every 2 hours during waking hours) and frequent nocturia (every hour). He complained of fatigue and a need to take breaks from activity. The examiner noted that the Veteran was still under the influence of his cancer therapies. By December 2008, he reported doing ok, voiding without difficulty, nocturia every three hours and an improvement in energy level. His PSA was .09. In March 2009 it was .06. He reported frequent and urgent urination. In May 2009, he underwent a VA examination, during which he reported lethargy, weakness, frequent urination (8 or 9 times in the daytime and 3 or 4 times at night), a weakened stream, urinary urgency with no leakage, erectile dysfunction (ED) and hot flashes. In June 2009, he reported frequent and urgent urination. His PSA was .03. In September 2009, his PSA was .07. During this time period through November 2009, the Veteran was in receipt of a 100 percent evaluation for his prostate cancer and associated therapy and, effective June 2009, was also in receipt of a separate evaluation for service-connected ED and SMC for the loss of use of a creative organ. Beginning in December 2009, the Veteran's PSA began to increase gradually (.11 in December 2009, .31 in March 2010, .21 in June 2010, .29 in October 2010, .39 in December 2010, .56 in March 2011, .65 in June 2011, .62 in December 2011, .70 in June 2012 and .74 in December 2012). Since then, however, no medical professional has noted that the increase is insufficient to establish a recurrence. As the rating schedule demands, the RO thus reduced the 100 percent evaluation assigned the prostate cancer to 20 percent based on residuals of the cancer. The RO found the residuals 20 percent disabling in accordance with 38 C.F.R. § 4.115a, due to urinary frequency. As previously indicated, a 20 percent evaluation is assignable pursuant to that regulation due to such frequency when the daytime voiding interval is between one and two hours or there are three to four instances of awakening to void. A 40 percent evaluation requires a daytime voiding interval of less than one hour or five or more instances of nighttime awakening to void, which the Veteran has never reported. Rather, after November 2009, during VA outpatient visits in December 2009 and June 2011, the Veteran consistently reported voiding frequency of this level, including nocturia three times nightly. In February 2013, he underwent a VA examination, during which he reported a similar level of disability. He indicated that he was in remission, but had nocturia three times a night. He described his urinary dysfunction as causing daytime voiding intervals between 2 and 3 hours and nighttime awakening to void 3 or 4 times. He reported no additional symptoms other than ED, which is separately service connected. Voiding dysfunction of this level warrants the assignment of a 20 percent schedular evaluation under 38 C.F.R. § 4.115a. There is no evidence that, since November 2009, the Veteran has had any other type of voiding dysfunction that would warrant the assignment of an initial evaluation in excess of 20 percent. During VA outpatient treatment visits dated since November 2009, the Veteran's reported post-void dribbling, but not leakage necessitating the changing of absorbent materials 2 to 4 times daily. Moreover, in February 2013, the VA examiner specifically found that residuals of the Veteran's cancer did not necessitate the use of any appliances and had not resulted in any obstructive voiding or urinary tract or bladder infections. There is also no evidence showing that, during this time period, the Veteran had renal dysfunction. Rather, the Veteran, who has diabetes, underwent laboratory testing on multiple occasions, but the results of that testing failed to reveal renal dysfunction. The Veteran's albumin and creatinine were always within the normal range and, to the extent any results were abnormal, the abnormalities were attributed primarily to his diabetes, never to cancer residuals. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 436 (31st ed. 2007) ("creatinine" is "the cyclic anhydride of creatine...excreted in the urine; measurements of excretion rates are used as diagnostic indicators of kidney function..."). In statements submitted in support of this claim, the Veteran and his sister claim that the Veteran has poor health and weakness secondary to his cancer and, indeed, according to the rating schedule, such findings can be attributable to renal dysfunction. However, during his VA examination, the Veteran reported no such symptoms and the VA outpatient treatment records do not substantiate that they exist secondary to renal dysfunction. Although the Veteran and his sister are competent to attest to the Veteran's generalized poor health and the presence of lay observable symptoms such as weakness, given that they are not trained in medicine, they are not competent to attest to the source of these problems. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Even assuming otherwise, the fact that the Veteran refrained from reporting these problems during a VA examination calls into question the Veteran's credibility in this regard. In the absence of competent and credible evidence of more severe voiding dysfunction or of renal dysfunction, the Board may not assign the Veteran a schedular evaluation in excess of 20 percent for residuals of prostate cancer, from November 1, 2009. The Board recognizes that the rating schedule is designed to accommodate changes in condition and that the Veteran may be awarded a different evaluation in the future should his prostate cancer disability picture change. 38 C.F.R. § 4.1. At present, however, the 20 percent evaluation is the most appropriate given the medical evidence of record. 2. Extraschedular Consideration In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign a rating on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO or Board must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular evaluation if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). If the claimant or the evidence raises the question of entitlement to a higher initial or increased rating on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular evaluation is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. Here, the Veteran asserted during his VA examination that residuals of his prostate cancer interfere with his ability to work. He indicated that medication was helping his symptoms, but that he still had frequent urination and urge incontinence and given these symptoms, he needed to be close to a restroom. The VA examiner objectively found interference with employment based on this problem. Referral for consideration of this matter is not necessary as the schedular criteria reasonably describe the level of severity and symptomatology of the residuals of the Veteran's prostate cancer. The criteria contemplate the Veteran's level of voiding dysfunction not only in terms of voiding intervals, but also in terms of the times of the frequent voiding. The Veteran's ED, the only other residual symptom of which the Veteran complained during his VA examination, is service connected and evaluated separately. Given this fact, the Board need not proceed further by determining whether the Veteran's prostate cancer disability picture involves the other related factors noted in 38 C.F.R. 3.321(b)(1). ORDER Entitlement to a rating in excess of 20 percent for adenocarcinoma of the prostate, from November 1, 2009, forward, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs