Citation Nr: 1335583	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-18 301A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a higher initial disability rating for service-connected prostate cancer, status post radiation seed implant, evaluated as 100 percent disabling as of March 29, 2007, and 20 percent disabling as of June 1, 2007.


ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1965 to April 1967.

This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2008 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

In March 2013, the Board remanded the case to the RO for additional evidentiary development.  The Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal.  See Stegall v. West, 11 Vet. App. 268 (1998).  The RO continued the denial of the claim as reflected in the April 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration.

The Board notes that, by letter received in December 2012, the Veteran withdrew his power of attorney for The American Legion.  Subsequently, he was advised by letter that he could appoint a new representative or choose to proceed pro se.  In January 2013, the Veteran advised VA that he wished to represent himself.

A review of the Virtual VA paperless claims processing system reveals the Veteran's medical treatment records from the Chicago VA Medical Center (VAMC) from October 2008 to March 2013.  The VBMS paperless claims system does not contain any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1.  The Veteran underwent a permanent implant of brachytherapy seeds in May 2006.

2.  The Veteran does not wear absorbent padding during the day or at night.

3.  Prior to March 30, 2010, the Veteran had urinary frequency two to three times per night.

4.  As of March 30, 2010, the Veteran has daytime voiding intervals of less than one hour.

5.  From June 1, 2007 to February 10, 2013, an active malignancy was not shown and the Veteran was not receiving antineoplastic chemotherapy.  
6.  As of February 11, 2013, it is shown that the Veteran had a recurrence of his actively malignant prostate cancer.


CONCLUSIONS OF LAW

1.  From June 1, 2007 to March 30, 2010, the criteria for the assignment of an initial staged rating in excess of 20 percent for service-connected prostate cancer residuals were not met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2013). 

2.  From March 30, 2010 to February 10, 2013, the criteria for the assignment of an initial staged rating of 40 percent, but no higher, for service-connected prostate cancer residuals were met.  38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.115a, 4.115b, DC 7528. 

3.  As of February 11, 2013, the criteria for the assignment of a 100 percent rating for prostate cancer have been met.  38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.115a, 4.115b, DC 7528. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Compliance with Prior Board Remand

The Board observes that this case was previously remanded in March 2013, in order to obtain a VA examination to determine the current severity of the Veteran's service-connected prostate cancer and to obtain the Veteran's Chicago VAMC records from October 2008 to the present.  A VA prostate cancer examination was conducted in April 2013.  The VA examination was adequate.  See 38 C.F.R. § 3.159(c)(4).  Additionally, Chicago VAMC records from October 2008 to March 2013 were obtained and associated with the Veteran's electronic claims file.  It appears there was substantial compliance with the prior remand order and the Board may continue with its determination.  Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

II. VA's Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  

This appeal arises from disagreement with the initial evaluation following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  However, notice was provided in July 2007, August 2007, September 2007 and June 2008 letters.

Advance VA notice under 38 C.F.R. § 3.105 was not required prior to the 20 percent initial staged rating assignment for the Veteran's prostate cancer.  Under 38 C.F.R. § 3.105, prior notice of a reduction is required if the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made.  The April 2010 RO rating decision on appeal granted service connection for prostate cancer with a 100 percent evaluation from March 29, 2007 and a 20 percent evaluation from June 1, 2007.  There was no reduction in actual compensation payments based on the reduction to 20 percent as the Veteran had not yet received any compensation payments at the time of the rating decision.  When a diagnostic code requires assignment of a 100 percent evaluation for a finite period of time, followed by the requirement that the disorder thereafter be rated based on residuals, the assignment of a lower disability rating based on those residuals does not constitute a reduction.  See Rossiello v. Principi, 3 Vet. App. 430 (1992). 

As for the duty to assist, the Veteran's VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file.  
	
Three VA examinations have been secured in connection with the current claim for an increased rating.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008).  Taken together, the Veteran's August 2007, March 2010 and April 2013 VA examinations are sufficient as the VA examiners considered the entire record, noted the history of the disability, addressed relevant evidence and provided medical information necessary to reach a decision.  VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4).  

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

III.   Increased Rating- Prostate Cancer

The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected residuals of prostate cancer, status post brachytherapy due to severe urinary frequency and continued malignancy.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  Where there is a question as to which of two ratings should be applied, the higher rating 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 Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App 505 (2007).  As discussed in detail below, the Board concludes that staged ratings for the Veteran's prostate cancer condition is warranted.

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran).

In determining whether a claimed benefit is warranted, 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 the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran was diagnosed with prostate cancer in May 2005.  In May 2006, the Veteran underwent a permanent implant of brachytherapy seeds in his prostate.  Subsequently, he was granted service connection for prostate cancer evaluated as zero percent disabling, from March 29, 2007.   Pursuant to an April 2010 rating decision, the Veteran's prostate cancer was evaluated as 100 percent disabling from March 29, 2007, the date the Veteran filed his claim, and as 20 percent disabling from June 1, 2007.

The Veteran's disability is evaluated under DC 7528.  Under DC 7528, a 100 percent evaluation is assigned for malignant neoplasms of the genitourinary system. A Note following DC 7528, provides 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.  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).  If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b. 

As the Veteran's residuals include voiding dysfunction, and no renal dysfunction has been shown, the Board will rate the Veteran's residuals of prostate cancer as voiding dysfunction.  Voiding dysfunction is rated based on urine leakage, frequency or obstructed voiding.  38 C.F.R. § 4.115a.  The evidence shows the Veteran suffers from urine frequency but not urine leakage or obstructed voiding.

Under the provisions for urinary frequency, a 10 percent evaluation is warranted for 
for daytime voiding interval between two and three hours, or awakening to void two times per night.  38 C.F.R. § 4.115a.  A 20 percent evaluation is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night.  Id.  A 40 percent evaluation is warranted for daytime voiding interval less than one hour, or awakening to void five or more times per night.  Id.

Prior to February 11, 2013, the medical evidence of record shows that the Veteran's prostate cancer was successfully treated.  Specifically, the Veteran's PSA levels were 5.38 in May 2005 (prior to treatment); 0.46 in October 2006; 0.45 in March 2007; 0.59 in August 2007; 1.25 in March 2008; 0.90 in May 2010; and 1.04 in May 2010.  The level was 4.85 in February 2013.  

A Chicago VAMC note from June 2007 shows that the Veteran's PSA levels were less than 1.0.  The Veteran was found to be "clinically doing quite well."  The Veteran had no specific complaints.  The Veteran was diagnosed with carcinoma of the prostate, status post radiation.

The Veteran was afforded a VA examination in August 2007, which found the Veteran had no problems with urination and his most recent PSA in March 2007 was 0.45.  The rectal examination revealed a minimally enlarged prostate with a hard nodule on the right side, approximately 1 centimeter in diameter.  The diagnosis was carcinoma of the prostate treated with brachytherapy with a right-sided prostatic nodule whose component had yet to be determined.  The Veteran was not diagnosed with a current malignancy, nor was he shown to be having antineoplastic chemotherapy or other therapeutic procedures.  

In his March 2008 notice of disagreement, the Veteran complained of still having effects from the May 2006 permanent implant of brachytherapy seeds in his prostate and from his prostate cancer.  In a March 2008 statement, the Veteran's wife stated that the Veteran awakens two to three times per night to urinate and urinates frequently throughout the day.  

During the Veteran's March 2010 VA examination, the VA examiner noted the Veteran had not seen an urologist for almost two years.  The last time his PSA was tested in March 2008, it was 1.25.  Although the Veteran had urinary control and wore no pads, he complained of awakening to void two to three times a night.  A rectal examination revealed the same small prostate nodule from the August 2007 VA examination; however, it appeared to be smaller, approximately 5 to 6 millimeters.  The diagnosis was carcinoma of the prostate treated by brachytherapy with a slight elevation of the Veteran's PSA levels.

In his May 2010 VA Form 9, the Veteran claimed that his August 2007 and March 2010 VA examinations show his prostate cancer is active.  Additionally, the Veteran stated that he told the March 2010 VA examiner that he not only has nocturia but also urinates three to four times per hour during the day.  

From June 1, 2007 to February 11, 2013, the Veteran's VAMC treatment records fail to show the diagnosis of a current malignancy or that the Veteran was undergoing antineoplastic chemotherapy or other therapeutic procedures.  Therefore, a 100 percent disability rating is not warranted during this timeframe.  The Board acknowledges that the Veteran has been shown to have very slightly elevated PSA levels during this timeframe and some urinary incontinence.  However, the Board reiterates that an active malignancy or antineoplastic chemotherapy has not been shown.  No medical professional has provided any opinion to indicate that the Veteran had an active malignancy during this timeframe.  While the Veteran alleges that his prostate cancer was actively malignant during this timeframe, this assertion falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Based on the above, an evaluation higher than 20 percent is not warranted from June 1, 2007 to March 30, 2010.  See 38 C.F.R. § 4.115a (urinary frequency).  During this timeframe, the evidence reflects that the Veteran awakened to void two to three times per night.  See Wife's Statement, March 2008; see also VA Examination, March 2010.  As this urinary frequency falls midway between the criteria for a 10 percent evaluation and a 20 percent evaluation, resolving the benefit of the doubt in the Veteran's favor results in a 20 percent evaluation for residuals of prostate cancer.  From June 1, 2007 to March 30, 2010, the evidence of record is against a finding that the Veteran had any symptoms which warrant an evaluation in excess of 20 percent.   As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.

However, as of March 30, 2010, the evidence shows that the Veteran told the VA examiner he voids three to four times per hour during the day.  See Veteran's VA Form 9, May 2010.  Thus, from March 30, 2010, a 40 percent evaluation is warranted for daytime voiding intervals of less than one hour.  See 38 C.F.R. § 4.115a (urinary frequency).  This is the maximum rating for urinary frequency and there is no indication the Veteran suffered from other types of voiding dysfunction or any renal dysfunction.

As stated above, from June 1, 2007 to February 10, 2013, there is no evidence in the record of current malignancy, antineoplastic chemotherapy or other therapeutic procedures.  However, beginning on February 11, 2013, the medical evidence shows the Veteran's prostate cancer is actively malignant.  See VA Examination, April 2013.  The VA examiner noted that the Veteran's 2010 PSA reading was 0.90 but had increased to 4.85 as of February 11, 2013.  The examiner opined that the Veteran's prostate cancer disease is currently active and recommended hormonal deprivation therapy for treatment of the condition.  As the Veteran had not been seen by urology since 2010, it was impossible for the VA examiner to determine when the Veteran's prostate cancer became active.  Thus, the evidence of record as of February 11, 2013, supports a finding that the Veteran's prostate cancer is currently malignant and warrants a 100 percent disability evaluation pursuant to DC 7528.  

Extraschedular Consideration

The rating schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability.  See 38 C.F.R. § 4.1.  

The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder.  38 C.F.R. § 3.321(b).  However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's prostate cancer symptoms and disability levels.  

Prior to June 1, 2007, the Veteran's prostate cancer disability was manifest by active malignancy and brachytherapy radiation treatment.  From June 1, 2007 to March 30, 2010, the Veteran's prostate cancer disability was status post brachytherapy with no active malignancy and voiding two to three times per night.  From March 30, 2010 to February 10, 2013, the Veteran's prostate cancer disability was status post brachytherapy with no active malignancy and daytime voiding intervals of less than one hour.  As of February 11, 2013, the Veteran's prostate cancer disability was shown to be actively malignant.  These factors are contemplated by the rating criteria.  

The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected prostate cancer.  Hence, referral for consideration of an extraschedular rating is not warranted.

IV.  Total Rating for Compensation Based on Individual Unemployability

Total rating for compensation based on individual unemployability (TDIU), is an element of all appeals of an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  

The Veteran's April 2013 VA prostate cancer examination specifically finds that the Veteran's prostate cancer does not impact his ability to work.  There is no evidence in the record of unemployability and the Veteran has not claimed to be unemployable due to his service-connected disabilities.  Hence, further consideration of TDIU is not warranted. 

ORDER

From June 1, 2007 to March 30, 2010, an initial staged rating in excess of 20 percent for service-connected prostate cancer residuals is denied.  

From March 30, 2010 to February 10, 2013, an initial staged rating of 40 percent, but no higher, for service-connected prostate cancer residuals is granted.

As of February 11, 2013, an initial staged rating of 100 percent for prostate cancer is granted.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs