Citation Nr: 1336705 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 98-07 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 60 percent for a prostate disability from January 15, 1997, to January 24, 2005; and from January 1, 2006, to April 1, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) from March 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied a compensable rating for a prostate disability. An August 1999 rating decision increased the rating for prostatitis to 10 percent effective September 8, 1997. The Board remanded the claim for additional development in December 2003. A May 2005 rating decision assigned an increased rating of 60 percent for the prostate disability, effective January 15, 1997, the date of receipt of the claim. In November 2005 and October 2009, the Board again remanded the claim for additional development. In a July 2011 decision, the Board denied a rating in excess of 60 percent for a prostate disability prior to January 25, 2005; denied a rating in excess of 60 percent for a prostate disability from January 1, 2006, to April 1, 2007; granted a 100 percent rating for a prostate disability from April 2, 2007, to April 19, 2008; and denied a rating in excess of 60 percent for a prostate disability from April 20, 2008. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In an August 2012 Order, the Court granted a Joint Motion for Partial Remand, vacated the portion of the Board's July 2011 decision that denied a rating in excess of 60 percent for a prostate disability from January 15, 1997, to January 24, 2005, and from January 1, 2006, to April 1, 2007, and remanded the matter for further development. The Veteran expressly abandoned his claim for entitlement to a rating in excess of 60 percent for a prostate disability from April 20, 2008. Therefore, that portion of the Board's July 2011 decision, and the portion that granted a 100 percent rating for a prostate disability for the period from April 2, 2007 to April 19, 2008, was not vacated and the rating for those periods is no longer on appeal. In April 2013, the Board requested an Medical Opinion, which was received in May 2013. The Board requested an addendum and that was provided in June 2013. The Veteran and his representative were provided with notice and a copy of the opinions in July 2013. The Veteran's representative filed a brief in the matter later that month. The case returns now for appellate consideration. The claims file contains various statements from the Veteran discussing depression related to his various medical disabilities. He has also mentioned a worsening of his service-connected erectile dysfunction since his claim for an increased rating was last denied in January 2001. In a statement received in August 2010, the Veteran asserted entitlement to a special monthly compensation due to various orthopedic disabilities. Those matters are referred to the Agency of Original Jurisdiction for clarification from the Veteran or appropriate action and will not be addressed in this decision. Finally, the Board notes that in July 2013, the Board received a VA clinical record from the Veteran that he indicated listed his PSA levels from May 2008 through January 2013. The terms of the Joint Motion for Partial Remand specifically stated that the Veteran had abandoned his claim for entitlement to a rating in excess of 60 percent for a prostate disability from April 20, 2008, and the rating as of April 20, 2008, is no longer on appeal because it was the subject of the part of a Board decision that was not vacated. Therefore, the information contained in the document is not relevant to the Board's decision. To the extent that the Veteran wants to file a new claim for increased compensation for that disability, he should file that claim with the RO, and that information is referred to the RO for appropriate action. FINDINGS OF FACT 1. From January 15, 1997, to November 21, 2004, the Veteran's prostate disability was manifested by stress incontinence and voiding dysfunction requiring the use of absorbent materials which required changing more than four times per day; there was no renal dysfunction and no clinical or biochemical evidence of malignancy. 2. From November 22, 2004 to January 24, 2005, there was biochemical evidence of prostate cancer. 3. From January 1, 2006, to November 1, 2006, the Veteran's prostate disability was manifested by stress incontinence and voiding dysfunction requiring the use of absorbent materials which required changing more than four times per day; there was no renal dysfunction and no clinical or biochemical evidence of malignancy. 4. From November 2, 2006 to April 1, 2007, there was biochemical evidence of a recurrence of prostate cancer. CONCLUSIONS OF LAW 1. From January 15, 1997, to November 21, 2004, the criteria for a rating in excess of 60 percent for a prostate disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2013). 2. From November 22, 2004, to January 24, 2005, the criteria for a 100 percent rating for a prostate disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2013). 3. From January 1, 2006, to November 1, 2006, the criteria for a rating in excess of 60 percent for a prostate disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2013). 4. From November 2, 2006, to April 1, 2007, the criteria for a 100 percent rating for a prostate disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). With regard to the claim for an increased rating, the Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice, although the notice came after the initial adjudication because that type of notice was not required at the time of the initial adjudication. As such, the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided, including in the parties' Joint Motion for Partial Remand that was granted by the Court in August 2012. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication by the RO, most recently in a November 2010 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Pursuant to the parties' Joint Motion for Partial Remand, the Board requested an obtained a medical opinion with an addendum. The medical opinion was probative and sufficient, as it provided the necessary information upon which to render a decision on the claim relevant to the rating criteria for the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. When making determinations as to the appropriate rating to be assigned, VA must take into account the Veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). Prostatitis is inflammation of the prostate gland. Watai v. Brown, 9 Vet. App. 441 (1996). Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, and post-operative residuals are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2013). Malignant neoplasms of the genitourinary system are rated as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2013). Following the cessation of surgical, X-ray, antineoplastic, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, the disability will be rated on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2013). Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating for urine leakage contemplates the wearing of absorbent materials, which must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials, which must be changed two to four times per day. A 60 percent rating is warranted for 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 four times per day. 38 C.F.R. § 4.115a (2013). For a rating based on urinary frequency, a 10 percent rating is warranted for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted where there is a daytime voiding interval between one and two hours, or if the disability results in awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. 38 C.F.R. § 4.115a (2013). For a rating based on obstructed voiding, a 10 percent rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc; (2) Uroflowmetry; markedly diminished flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115a (2013). With regard to urinary tract infections, a 10 percent rating is warranted for long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic urinary tract infections requiring drainage or frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. Urinary tract infection with poor renal functioning is to be rated as renal dysfunction. 38 C.F.R. § 4.115a (2013). The evidence shows that, effective in January 15, 1997 and until the diagnosis of prostate cancer on January 25, 2005, the Veteran's recurring prostatitis was rated 60 percent disabling under Diagnostic Code 7527. In January 2005, he was diagnosed with prostate cancer. He underwent a radical retropubic prostatectomy in May 2005 followed by six weeks of radiation therapy. His prostate disability was rated 100 percent disabling under Diagnostic Code 7528 from January 25, 2005, and then rated 60 percent disabling under Diagnostic Code 7528 from January 1, 2006. In the prior decision in July 2011, the Board found that the evidence did not show that the Veteran's malignancy was present prior to January 25, 2005. Subsequently, a medical opinion was obtained to ascertain the date when it was initially factually ascertainable that the Veteran had a malignancy in his prostate. After reviewing the claims file, including the clinical laboratory records outlined in the medical reports, a physician concluded that on November 22, 2004, another physician identified a prostate nodule and the presence of an elevated prostate specific antigen (PSA). Therefore, the reviewing physician concluded that was the earliest date that a definitive diagnosis of prostate cancer could be rendered. Therefore, the Board finds that a 100 percent rating was warranted for the Veteran's service-connected prostate disability under Diagnostic Code 7528 from November 22, 2004, to January 24, 2005. The medical reports dated for the period from January 15, 1997, through November 21, 2004, do not show that the Veteran experienced urinary tract infections as the result of his prostate disability. The Veteran reported chronic dysuria and during a March 2005 VA examination, he reported a history of 15 to 20 urinary tract infections. However, an October 2008 VA examiner noted that VA records dated from January 1995 to May 2008 showed clear urinalysis and that no urinary tract infections were noted on laboratory urinalysis during that time period. There is no other clinical evidence of record to support a history of urinary tract infections. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the diagnosis of a urinary tract infection falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the medical evidence pertaining to the Veteran's urinary tract health is more probative than the lay statements provided by the Veteran alleging the presence of infections. Additionally, the Board finds that the medical evidence does not show that the Veteran was found to have renal dysfunction as the result of the prostate disability post surgery. Consequently, voiding dysfunction pursuant to Diagnostic Code 7527 is the predominant disability for the period prior to January 2005. Nevertheless, a 60 percent rating is the maximum allowable rating under Diagnostic Code 7527 for a prostate disability whether rated based on voiding dysfunction or urinary tract infection (without renal involvement). Therefore, absent evidence of poor renal functioning that was severe, the Board finds that a higher rating under Diagnostic Code 7527 is not warranted at any time from January 15, 1997, through November 21, 2004. With regard to assessing the appropriate rating for the Veteran's prostate disability from January 1, 2006, to April 1, 2007, in the Joint Motion for Partial Remand, it was noted that an April 2, 2007, VA radiation oncology assessment noted PSAs of 10.67 (pre-diagnosis) in November 12, 2004; 0.02 (post-surgery) in January 11, 2006; 0.09 in July 21, 2006; 0.20 in November 2, 2006; and 0.28 in March 13, 2007. The outside medical expert noted PSAs from the records of 10.67 (pre-surgery) in November 12, 2004; 0.02 in January 11, 2006; 0.09 in July 9, 2006; 0.22 (pre-radiation) in June 8, 2007; 0.17 (during radiation) in September 28, 2007; 0.07 (post radiation) in January 22, 2008; and 0.03 in May 19, 2008. Based on these seven PSA scores, the reviewing physician concluded that the earliest the Veteran suffered a PSA biochemical recurrence of his prostate cancer was June 8, 2007, when the PSA was 0.22. However, the Board observes that the PSA score on November 2, 2006, was in the same range (0.20 versus 0.22). (Notably, the physician did not find a PSA score of 0.09 on July 9, 2006 to be indicative of a biochemical recurrence of prostate cancer even though it was slightly higher than the 0.02 assessed on January 11, 2006). Therefore, the Board finds that November 2, 2006, is the earliest date that it was factually ascertainable that the Veteran experienced a biochemical recurrence of his prostate cancer. Therefore, a 100 percent rating for a prostate disability is warranted under Diagnostic Code 7528 from November 2, 2006, to April 1, 2007. From January 1, 2006, to November 1, 2006, the Veteran's a prostate disability was predominantly manifested by voiding dysfunction. The evidence shows stress incontinence requiring the use of absorbent materials that required changing more than four times per day, consistent with a 60 percent rating. The evidence does not show renal dysfunction during that period. A 60 percent rating is the maximum allowable rating under Diagnostic Code 7527 for a prostate disability whether rated based on voiding dysfunction or urinary tract infection (without renal involvement). Therefore, absent evidence of poor renal functioning that is severe, the Board finds that a higher rating under Diagnostic Code 7527 is not warranted at any time during the period from January 1, 2006 to November 1, 2006. Finally, the Board finds no evidence that the Veteran's service-connected prostate disability presented such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular rating during the periods of time when less than a total rating has been authorized. 38 C.F.R. § 3.321(b)(1) (2013). The objective medical evidence of record shows that manifestations of the Veteran's prostatitis and service-connected prostatectomy residuals do not result in a marked functional impairment to a degree other than that addressed by VA's Rating Schedule. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). The Board finds that the evidence does not show frequent hospitalization due to prostatitis or prostatectomy residuals or that the disability causes marked interference with employment beyond that envisioned by the schedular rating already assigned. The Board recognizes that the Veteran has stress incontinence and that his private urologist has recommended an artificial sphincter. Nevertheless, the Veteran's schedular rating for voiding dysfunction specifically contemplates continual urine leakage, urinary incontinence, and stress incontinence. Therefore, the Board finds that the schedule is not inadequate. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). ORDER From January 15, 1997, to November 21, 2004, a rating in excess of 60 percent for a prostate disability is denied. From November 22, 2004, to January 24, 2005, a 100 percent rating for a prostate disability is granted. From January 1, 2006, to November 1, 2006, a rating in excess of 60 percent for a prostate disability is denied. From November 2, 2006, to April 1, 2007, a 100 percent rating for a prostate disability is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs