Citation Nr: 1336216 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-04 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for prostate cancer, status post radical prostatectomy with impotency, from June 1, 2008 to April 4, 2010, and a rating in excess of 60 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for bowel incontinence prior to February 22, 2012, and to a rating in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2006, the RO granted service connection for prostate cancer, status post radical prostatectomy with impotency, and assigned a 100 percent rating effective June 7, 2006. This rating decision noted that the 100 percent evaluation was assigned during active malignancy or antineo-plastic therapy, and that six months following completion of treatment, the residual disability would be determined by a VA examination. Within one year of the October 2006 rating decision, the Veteran was afforded a VA examination in July 2007. In a March 2008 rating decision, the RO decreased the assigned rating for prostate cancer from 100 percent to 40 percent effective June 1, 2008. In that decision, the RO also granted service connection for bowel incontinence and assigned a 10 percent rating, effective June 1, 2008. In a July 2010 rating decision, the RO increased the assigned rating for prostate cancer from 40 percent to 60 percent effective April 5, 2010. In a July 2012 rating decision, the RO increased the assigned rating for bowel incontinence from 10 percent to 30 percent effective February 22, 2012. The Veteran had requested a hearing at the RO in September 2007. However, that hearing was cancelled in exchange for the Veteran receiving a VA examination. In his February 2009 VA Form 9, the Veteran requested a hearing before a member of the Board to be conducted at his local RO. However, in correspondence dated August 2013, he cancelled his hearing requested. Therefore, the Board will proceed with adjudication of his claims. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDINGS OF FACT 1. The Veteran's radiation and hormone therapy for prostate cancer ceased in January 2007, and there is no evidence of a reoccurrence or metastasis since that time. 2. From June 1, 2008 to January 23, 2009, urinary incontinence did not require the changing of absorbent materials more than 4 times per day. 3. As of January 24, 2009, urinary incontinence required the changing of absorbent materials more than 4 times per day. 4. The 60 percent rating assigned for prostate cancer from January 24, 2009 is the maximum schedular rating for voiding dysfunction; renal dysfunction has not been demonstrated. 5. Prior to February 22, 2012, bowel incontinence did not require the use of absorbent pads and did not result in involuntary bowel movements. 6. From February 22, 2012, bowel incontinence was not manifested by extensive leakage or fairly frequent involuntary bowel movements. CONCLUSIONS OF LAW 1. The reduction from 100 percent to 40 percent for prostate cancer, status post radical prostatectomy with impotency, was proper, and the criteria for a rating in excess of 40 percent have not been met from June 1, 2008 to January 23, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.105(e), 3.321, 4.1, 4.2, 4.7, 4.115b, Diagnostic Code 7528 (2013). 2. The criteria for a rating of 60 percent, but not higher, for prostate cancer, status post radical prostatectomy with impotency, have been met from January 24, 2009 to April 4, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.105(e), 3.321, 4.1, 4.2, 4.7, 4.115b, Diagnostic Code 7528 (2013). 3. The criteria for a rating in excess of 60 percent for prostate cancer, status post radical prostatectomy with impotency, have not been met from January 24, 2009, forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.105(e), 3.321, 4.1, 4.2, 4.7, 4.115b, Diagnostic Code 7528 (2013). 4. The criteria for a rating in excess of 10 percent for bowel incontinence prior to February 22, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7332 (2013). 5. The criteria for a rating in excess of 30 percent for bowel incontinence from February 22, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7332 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to the Veteran's claim for prostate cancer, the assigned evaluation under Diagnostic Code 7528 was reduced from 100 percent to 40 percent. The provisions of that Diagnostic Code provide that certain changes in the assigned evaluation shall be subject to 38 C.F.R. § 3.015(e). See 38 C.F.R. § 4.115b, Diagnostic Code 7528. Proper procedure concerning notification for a reduction in rating begins with the preparation of a rating proposing the reduction or discontinuance and setting forth all material facts and reasons for it. 38 C.F.R. § 3.105(e) (2013). In addition to notification of the contemplated action, the Veteran must be notified in writing that he may request a predetermination hearing, provided that the request is received within 30 days of the date of the notice, and that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. §§ 3.105(e), (i) (2013). If after consideration of any additional evidence timely received, to include that from any predetermination hearing, a reduction or discontinuance of benefits still is found warranted, a final rating action setting forth the evidence and reasons will be issued. 38 C.F.R. § 3.106(i)(2) (2013). The effective date of the reduction or discontinuance of benefits shall be the last day of the month in which a 60-day period from the date of the notice to the Veteran expires. 38 U.S.C.A. § 5112(b)(6) (West 2002); 38 C.F.R. § 3.105(i)(2)(i) (2013). Here, in August 2007, the Veteran was notified of the proposed rating reduction, his right to submit evidence that the assigned rating should remain in effect, and his right to testify at a predetermination hearing. As noted above, the Veteran's requested hearing was cancelled so that he might be afforded a VA examination. Following the VA examination, a rating decision was issued in March 2008 which implemented the reduction of the Veteran's rating for prostate cancer from 100 percent to 40 percent effective June 1, 2008, more than 60 days after the Veteran was notified. Therefore, the provisions of 38 C.F.R. § 3.105(e) have been satisfied. With respect to the Veteran's claim for bowel incontinence, he is challenging the initial evaluation assigned following a grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where 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. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a December 2008 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing higher ratings. See 38 U.S.C.A. § 7105(d)(1). VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claims. Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Here, the Veteran's service treatment records, private treatment records and lay statements have been associated with the claims file. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's prostate cancer and bowel incontinence. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim 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 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). A. Prostate Cancer The Veteran's prostate cancer is rated under Diagnostic Code 7528, which provides for a 100 percent evaluation for active malignant neoplasms of the genitourinary system. Following the cessation of surgical, X-ray, antineo-plastic chemotherapy or other therapeutic procedure, the 100 percent evaluation shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, the disability shall be evaluated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2013). Under the renal dysfunction criteria set forth in 38 C.F.R. § 4.115a, a 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assignable for persistent edema and albuminuria with BUN [blood urea nitrogen] 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent rating is appropriate for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. As for voiding dysfunction, VA regulations provide that the disability is to be rated as a particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For urine leakage, a 40 percent rating is warranted when such impairment requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. The ratings available for urinary frequency and obstructed voiding do not provide for ratings higher than 40 percent. The Veteran underwent a VA examination in July 2007, and an addendum to that examination was also obtained. The Veteran reported dribbling of urine occurring 8 to 9 times per day, along with complaints of urinary frequency and urgency. He denied incontinence and stated that he did not use any absorbent pads. The examination report reflects that the Veteran completed radiation treatment for his prostate cancer in December 2006, and completed a 12-month course of hormonal therapy in the early part of the year. A September 2007 letter from one of the Veteran's private physicians noted that the Veteran was incontinent during the day and night, and changed his absorbent materials 3 to 4 times per day. A January 2008 letter from another of the Veteran's private physicians stated that the Veteran had symptoms of polyuria, fatigue, and nocturia. An additional examination in February 2008 noted a urinary frequency of 12 times per day. The Veteran also reported nocturia 3 to 4 times per night with decreased stream but no hesitancy. He experienced incontinence 2 to 3 times per day, but did not use pads or an appliance. In a March 2008 statement, the Veteran reported that he worked in a rural, outdoor facility. He did not need to wear absorbent pads due to the proximity of "nature's bathroom," and that he felt embarrassment at the idea of wearing them. He noted that there were times he was with a customer and could not leave to go to the bathroom, which caused him to wet himself. He included a log of his symptoms, and this log indicates he urinated about 15 times per day on average during a 3 week period. He included statements from two co-workers, who corroborated his account of urinating up to 15 times per day and experiencing episodes of urinary incontinence. Private records dated December 2008 and January 2009 noted hematuria, which the treating physician related to radiation changes associated with prostate cancer. In his VA Form 9 dated January 24, 2009, the Veteran stated that at his last VA examination in Temple, Texas, he informed the VA doctor that he was now wearing diapers for incontinence. He stated that he put on a pad after showering in the morning at 6:00 a.m.; and then changed it at about noon; between 3:00 and 4:00 p.m.; at night before bed; and again sometimes at midnight. A VA examination was conducted in April 2010. No renal dysfunction was noted. The Veteran reported urinating about 12 times during the day and 5 to 6 times at night. He denied any dysuria or hematuria, but experienced some slow stream and hesitancy. He reported using 5 pads every 24 hours. The examiner noted that the Veteran was retired, and that he was able to manage his activities of daily living. Another VA examination was conducted in February 2012. The Veteran reported that he wore absorbent briefs (for both urinary and fecal incontinence) that were changed about 5 times daily. Since using the briefs, he has only needed to get up once per night. He continued to have a daytime voiding interval of between 1 and 2 hours. He also experienced some hesitancy, slow stream, and decreased force of stream. Based on the evidence, a higher rating is not warranted at any point during the appeal period. First, the Board notes that a 100 percent rating under Diagnostic Code 7528 is only warranted for actively malignant neoplasms. In this case, the VA examinations of record noted that the Veteran's radiation and hormone therapy for prostate cancer ended in January 2007, and that there had been no reoccurrence or metastasis since that time. The Veteran's 100 percent rating was reduced to 40 percent effective from June 1, 2008, more than six months after the cessation of his therapy. Therefore, in the absence of active prostate cancer, the assigned rating was properly reduced to reflect a rating based upon voiding or renal dysfunction, as per Diagnostic Code 7528, and a 100 percent rating is not warranted from June 1, 2008. From June 1, 2008 to April 4, 2010, a 40 percent rating was assigned based on voiding dysfunction. A higher 60 percent rating is appropriate when the condition requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. On VA examination in July 2007, the Veteran denied an incontinence and stated that he did not wear pads. A September 2007 letter from the Veteran's private physician noted that the Veteran changed his absorbent materials 3 to 4 times per day. A February 2008 VA examination noted that the Veteran had incontinence only two to three times a day and did not use absorbent pads. He confirmed that he did not use pads in a March 2008 statement. Thereafter, in his January 2009 VA Form 9, the Veteran stated that at his last VA examination in Temple, Texas, he informed the VA doctor that he was now wearing diapers for incontinence. He stated that he put on a pad after showering in the morning at 6:00 a.m.; and then changed it at about noon; between 3:00 and 4:00 p.m.; at night before bed; and again sometimes at midnight (i.e., approximately 5 times a day). The Board finds that based upon the Veteran's VA Form 9 dated January 24, 2009, his condition required changing absorbent pads more than 4 times a day at that time. Therefore, a 60 percent rating is warranted effective January 24, 2009. While the Board has considered the Veteran's statements regarding his discomfort at using absorbent pads, the use of such materials are the sole schedular criteria listed in rating conditions based on urine leakage. The evidence does not show that the Veteran's condition required changing absorbent pads more than 4 times a day between June 1, 2008 and January 23, 2009. While the Veteran stated in January 2009 that he told the VA examiner in February 2008 that he changed his pad approximately 5 times a day, the Board does not find this statement to be credible based upon the Veteran's statements made in February and March 2008. Specifically, on VA examination in February 2008 he reported that he had incontinence only two to three times a day and did not use absorbent pads, and he confirmed that he did not use pads in a March 2008 statement. Moreover, while the Veteran reported urinating up to 15 times per day, the assigned 40 percent rating for this period is consistent with a daytime voiding interval of less than one hour if rated under the criteria for urinary frequency. See 38 C.F.R. § 4.115a. The 60 percent rating assigned from January 24, 2009 is the maximum schedular rating available for voiding dysfunction. Although higher ratings are available when rating prostate cancer under renal dysfunction, the Veteran has not alleged and the evidence does not show that his prostate cancer disability is associated with or has been accompanied by any symptoms of renal dysfunction. Accordingly, the Board has no basis to assign a higher rating under those criteria. Therefore, a rating in excess of 60 percent is not warranted from January 24, 2009. In a separate but related matter, the Veteran discussed impotency as it pertained to his prostate cancer residuals in his March 2008 notice of disagreement. He felt that this manifestation was not adequately addressed in the March 2008 rating decision that reduced his rating for prostate cancer from 100 percent to 40 percent. However, the Board notes that when the Veteran was granted service connection for prostate cancer "with impotency" in October 2006, he was also awarded special monthly compensation for loss of use of a creative organ under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a). This award has remained in effect since that time, and therefore he is being compensated for impotency as allowed for by the applicable laws and regulations. Although it is listed as part of the Veteran's service-connected condition, impotency is not among the criteria used in assigning ratings for prostate cancer or its residuals. B. Bowel Incontinence The Veteran's bowel incontinence is rated under Diagnostic Code 7332. He was assigned a 10 percent rating prior to February 22, 2012, and a 30 percent rating thereafter. Diagnostic Code 7332 provides ratings based on impairment of sphincter control, with regard to the rectum and anus. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Occasional involuntary bowel movements, necessitating wearing of pad, are rated 30 percent disabling. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Complete loss of sphincter control is rated 100 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7332. VA examination in July 2007 noted complaints of occasional bowel leakage. A February 2008 VA examination noted fecal leakage twice per day. In his VA Form 9 dated January 24, 2009, the Veteran stated that at his last VA examination in Temple, Texas, he informed the VA doctor that he was now wearing diapers for incontinence and bowel movements. He stated that he put on a pad after showering in the morning at 6:00 a.m.; and then changed it at about noon; between 3:00 and 4:00 p.m.; at night before bed; and again sometimes at midnight. During an April 2010 VA examination, the Veteran reported stool leakage that occurred 3 times per week as urge incontinence. He did not use any absorbent pads. On examination, there was mild laxity of the anal sphincter. Another VA examination was conducted in February 2012. The Veteran reported that, since his last examination, he experienced episodic fecal urge incontinence. He wore absorbent briefs (for both urinary and fecal incontinence) that were changed about 5 times daily. The examiner noted that the condition was not manifested by involuntary bowel movements or extensive leakage. Physical examination again revealed mild laxity of the anal sphincter, along with fecal soiling in the perianal area. Based on the evidence, a rating in excess of 10 percent is not warranted between June 1, 2008 and February 22, 2012. The next higher 30 percent rating under Diagnostic Code 7332 contemplates occasional involuntary bowel movements necessitating the wearing of an absorbent pad. Here, during the April 2010 VA examination, the Veteran described leaking stool 3 times per week, and examination revealed mild sphincter laxity. These findings are consistent with the assigned 10 percent rating. Involuntary bowel movements were not reported. He also denied using a pad. As noted earlier, the Veteran reported in February and March 2008 that he did not use absorbent materials for urinary incontinence. His January 2009 statement that used pads in February 2008 is found not to be credible, for the reasons discussed above. While the Board has assigned a higher rating for urinary incontinence effective from January 2009 based upon this statement, the evidence does not show that the Veteran had involuntary bowel movements necessitating the wearing of an absorbent pad at that time. Rather, on subsequent VA examination in April 2010 described leaking stool only 3 times per week and stated that he did not use any pads. He did not report any involuntary bowel movements. Therefore, the criteria for the 30 percent rating have not been met prior to February 22, 2012. From February 22, 2012, a rating in excess of 30 percent is not warranted. A higher 60 percent rating is appropriate for extensive leakage and fairly frequent involuntary bowel movements. The February 2012 VA examiner clearly noted that these manifestations were not present. The Veteran's reported symptoms of urge leakage and use of a pad, along with physical findings of mild sphincter laxity and soiling in the perianal area, are consistent with the assigned 30 percent rating for this period. C. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's prostate cancer and bowel incontinence with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Veteran's urinary and fecal leakage, urinary frequency, and use of absorbent materials are all expressly contemplated by the rating schedule. Notably, the Veteran submitted evidence that he experienced hematuria in December 2008 and January 2009. Those records attributed hematuria to radiation changes from prostate cancer treatment. Hematuria is not specifically contemplated by the rating schedule as a manifestation of prostate cancer. However, the presence of hematuria in December 2008 and January 2009, alone, does not warrant a referral for extraschedular consideration. Subsequent VA examinations noted that hematuria was not present, and during the period in question, the Veteran did not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran required frequent hospitalizations for his disabilities. Indeed, it does not appear from the record that he has been hospitalized at all for voiding dysfunction associated with prostate cancer. There is no persuasive evidence in the record to indicate that prostate cancer residuals, to include hematuria, would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected prostate cancer have resulted in any unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER A rating in excess of 40 percent between June 1, 2008 and January 23, 2009, for prostate cancer, status post radical prostatectomy with impotency, is denied. A rating of 60 percent, but not higher, from January 24, 2009 to April 4, 2010 for prostate cancer, status post radical prostatectomy with impotency, is granted. A rating in excess of 60 percent from April 5, 2010 for prostate cancer, status post radical prostatectomy with impotency, is denied. A rating in excess of 10 percent prior to February 22, 2012 for bowel incontinence is denied. A rating in excess of 30 percent from February 22, 2012 for bowel incontinence is denied. ____________________________________________ P. M DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs