Citation Nr: 1338507 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-24 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to higher initial rating for post-operative residuals of prostate cancer, currently evaluated as 10-percent disabling prior to October 11, 2011, and 60 percent beginning October 11, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counel INTRODUCTION The Veteran had active service from March 1966 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Newark, New Jersey, which granted service connection for residuals of prostate cancer and assigned an initial 10-percent disability rating, effective as of April 21, 2009, the date of the Veteran's claim. The Veteran perfected an appeal of the initial disability rating. In light of the fact the Veteran contested the initial evaluation of his disability; the Board has styled the issue of the case as reflected. See Fenderson v. West, 12 Vet. App. 119 (1999). In a January 2012 rating decision, the RO determined the Veteran's residuals of prostate cancer warranted an increased disability rating from 10 to 60 percent, effective as of October 11, 2011. The Board remanded the case in March 2012 so the Veteran's requested Travel Board hearing could be scheduled. The hearing was scheduled for June 25, 2012. On the day the hearing was scheduled, however, the Veteran withdrew his hearing request and asked that his appeal be forwarded to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the Virtual file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. Prior to June 25, 2010, the Veteran's prostate cancer residuals were manifested by daytime voiding intervals between two and three hours, and awakening to void less than two times per night. 2. For the period June 25, 2010, to October 10, 2011, the Veteran's prostate cancer residuals were manifested by voiding dysfunction that required the wearing of absorbent materials that required changing two to four times per day. 3. As of October 11, 2011, the Veteran's prostate cancer residuals manifested with voiding dysfunction that required the wearing of absorbent materials that required changing more than four times per day. 4. The post-operative prostate cancer residuals do not manifest with an exceptional disability picture. 5. The Veteran's service connected disabilities have prevented gainful employment since April 21, 2009. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 10 percent for residuals of prostate cancer prior to June 25, 2010 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 3.400, 4.1, 4.10, 4.115, 4.115b, Diagnostic Code (DC) 7528 (2013). 2. With resolution of reasonable doubt in the veteran's favor, the requirements for a 40-percent evaluation, and no higher, for residuals of prostate cancer are met for the period June 25, 2010, to October 10, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 3.400, 4.1, 4.10, 4.115, 4.115b, DC 7528. 3. The requirements for a 60-percent evaluation for residuals of prostate cancer are met, effective October 11, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 3.400, 4.1, 4.10, 4.115, 4.115b, DC 7528. 4. The requirements for TDIU have been met since the effective date of service connection for prostate cancer and anxiety disorder. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of the VCAA codified at 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Veteran's VA outpatient and his private medical records have been obtained and added to the claims file. The RO made repeat requests to the Veteran's private provider, Dr. S, and the Veteran, for the records related to the Veteran's post-operative care. Dr. S provided a letter, but he did not provide his clinical records. Neither the Veteran nor his representative asserts that there are additional records to be obtained. The Veteran was afforded two VA examinations to assist him with his claim. An examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In this case, the examination reports reflect that the examiners at each examination conducted a review of the claims file and recorded the Veteran's history as part of the examination. Further, the examiner rendered a diagnosis based on all of those elements. The Board notes that neither the Veteran nor his representative asserts that either examination was inadequate for rating or appellate review purposes. The Board finds the examinations were adequate. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is entitled to a staged rating any period of time of the rating period on appeal where the disability manifested at a more severe level. See Fenderson, 12 Vet. App. at 126. Analysis Malignancies of the genitourinary system are rated under 38 C.F.R. § 4.115b, DC 7528, which provides for a 100-percent rating for a six-month period after completion of surgery or other related therapeutic treatment. Afterwards, if there is no recurrence or metastasis, the residuals are rated as voiding dysfunction or renal dysfunction, whichever is more predominant. Id. Thereafter residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. Voiding dysfunction is rated as either urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. With continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20-percent disability rating is assigned for a disability requiring the wearing of absorbent materials which must be changed less than two times per day. A 40-percent disability rating is assigned for a disability requiring the wearing of absorbent materials which must be changed two to four times per day. A 60-percent disability rating is assigned for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. In cases of urinary frequency, a 10-percent disability rating is assigned for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20-percent disability rating is assigned for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40-percent disability rating is assigned in cases of a daytime voiding interval less than one hour, or awakening to void five or more times per night. In cases of obstructed voiding, a noncompensable (zero percent) disability rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10-percent disability rating is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post-void residuals greater than 150 cc, urometry with a markedly diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction, and stricture disease requiring periodic dilation every two to three months. A 30-percent disability rating is assigned for urinary retention requiring intermittent or continuous catheterization. The Veteran underwent a radical prostatectomy in April 2003 and received no therapeutic treatment thereafter. As noted, service connection has been in effect only since April 21, 2009. Hence, the initial six-month period had elapsed prior to the effective date of service connection. The Veteran reported in his claim for service connection that he saw Dr. S. for follow up after undergoing the prostate surgery. Dr. S's records of the Veteran's follow-ups in March 2004, August 2006, and May 2008 specifically note the Veteran did not report difficulty in urination; urinary discharge; or, wet/soiled clothes. The July 2009 VA examination report reflects the examiner noted the date of the Veteran's surgery and accompanying pathology reports. The Veteran reported that, prior to his surgery, he urinated normally, and he had normal erectile function. He reported further that he had lower urinary tract symptoms of nocturia once a night, and daytime frequency of voiding five times a day. The Veteran reported that he had relatively good urinary control since his surgery, and reported minimal stress urinary incontinence. He denied the use of pads or other protection; he rarely wet his underwear; and, he routinely changed underwear every morning. The Veteran related that he might have some leakage of urine with a deep cough. He estimated he had about 95 percent good control of urination. The examiner noted the prostate cancer likely was clinically controlled, as indicated by the continuously low PSA., the physical examination and the Veteran's reported history. The examiner diagnosed history of localized prostate cancer status post-laparoscopic radical prostatectomy with residuals as reported by the Veteran. The October 2009 rating decision reflects that, upon receipt of the July 2009 examination report, the RO initially rated the Veteran's residuals as urinary frequency. His initial 10-percent rating was consistent with the history he reported to the examiner: he voided once a night and five times a day, which was indicative of a voiding interval more than between one and two hours. As set forth above, he denied other symptoms. In a June 2010 statement submitted with his Substantive Appeal (VA Form 9), the Veteran acknowledged that the July 2009 examination report accurately reflected what he told the examiner. He added, however, that his symptoms were in fact more severe, but he was too embarrassed and ashamed to tell the examiner. The Veteran related that he in fact wore pads all day long, as he started leaking immediately after his surgery. He took medicine and practiced self-contain exercises to control the leakage. Some days the leakage was to the extent to where he had to change pads often. Dr. S's March 2012 letter notes the Veteran had experienced continued incontinence and urgency with regards to his bladder control since his surgery in March 2003. Dr. S noted further that the Veteran had been treated with a variety of different medications with marginal benefit; and, the Veteran required the use of a pad to absorb any urinary leakage. The Board accords more weight to Dr. K's records made contemporaneously with his treatment of the Veteran than his March 2012 letter. Hence, the Board is constrained to find the totality of the evidence shows the Veteran's postoperative residuals did not more nearly approximate the criteria for a rating higher than 10 percent for the period prior to June 25, 2010, the date VA received the Veteran's statement with his VA Form 9. In the June 2010 statement, the Veteran related that there were some days where he had "to change pads often." The Board affords the Veteran the benefit of the doubt and reads his statement as indicating the use of pads daily, and that he changed them on average two to four times per day. The Board bases this on the fact the Veteran clearly indicated that changing pads often was not the norm. Hence, the Board finds the Veteran's postoperative residuals more nearly approximated a 40-percent rating as of June 25, 2010, the date VA received the statement that showed evidence of a higher rating. 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.115. The October 2011 examination report reflects the examiner noted the Veteran's March 2003 surgery, and that the cancer was in remission. The report notes further that the Veteran manifested voiding dysfunction secondary to the surgery, it caused urine leakage, and it required absorbent materials that had to be changed more than four times a day. There is no basis for a rating in excess of 60 percent for the period beginning October 11, 2011. The Veteran's reported symptoms meet the criteria for the highest allowable rating, 60 percent. 38 C.F.R. § 4.115. As earlier discussed, the date on it which is factually ascertainable that the Veteran's residuals manifested at the 60-percent level is the date of the examination, October 11, 2011. 38 C.F.R. § 3.400. In the absence of evidence of recurrence of the prostate cancer, or therapeutic treatment, a higher scheduler rating is not warranted. 38 C.F.R. § 4.115b, DC 7528. Further, the evidence of record does not show a factual basis for consideration of a higher rating for renal dysfunction. No impairment of renal function has been reported. See 38 C.F.R. § 4.115. The Board awarded the Veteran staged ratings where shown by the evidence of record, as earlier discussed. See Fenderson, 12 Vet. App. 119. The Board also afforded the Veteran the benefit of the doubt were indicated. The Veteran's representative argues in the appellate brief that the Veteran's case should be referred for consideration of a higher rating on an extraschedular basis. For the reasons that follow, the Board rejects that assertion. Extraschedular In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extra-schedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating. Bagwell, 9 Vet. App. at 339. Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional. To do so, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008); see also VAOPGCPREC No. 6-1996 (Aug. 16, 1996), 61 Fed. Reg. 66,749 (1996), para. 7 (when service-connected disability affects employment "in ways not contemplated by the rating schedule" § 3.321(b)(1) is applicable). In the Veteran's case, as reflected in 38 C.F.R. § 4.115b, DC 7528, the Veteran's postoperative prostate cancer disability is in fact rated on the basis of the residuals. Those residuals are contemplated by the rating schedule as they consist of voiding dysfunction. He has been awarded special monthly compensation for loss of a creative organ; separately service connected for erectile dysfunction; a supraumbilical scar residual; and, depressed mood with anxiety disorder, all of which are deemed associated with his prostate cancer. All of the above awards were made on the basis of the rating schedule. There is no indication of residuals outside of those listed in the rating schedule. Thus, the Board finds the rating schedule fully contemplates the Veteran's prostate cancer disability. This means the Veteran's prostate cancer residuals disability is not exceptional. In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). The Board also notes that a January 2012 rating decision awarded the Veteran a total disability evaluation on the basis of individual unemployability, effective in June 2011. Rice-TDIU The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The RO has awarded the Veteran TDIU, effective October 11, 2011. The Board must consider his entitlement to that benefit during the period since the effective date of service connection of the prostate disability, April 21, 2009. See Fenderson. The Veteran has met the percentage requirements for TDIU throughout this period. He was in receipt of a combined 60 percent rating or more for disabilities of a common etiology. See 38 C.F.R. § 4.16(a). The record reflects that the Veteran retired on April 1, 2009. On a VA mental health examination in August 2009, the examiner assigned a global assessment of function score of 50. This score is indicative of an inability to work. AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.125, 4.130 (2013). The examiner opined that the service connected psychiatric disability would cause "some difficulty" with employment. These findings in conjunction with the impairment caused from the service connected voiding dysfunction, weigh in favor of a finding that TDIU has been warranted since the effective dates of service connection for the prostate and psychiatric disabilities, April 21, 2009. ORDER Entitlement to an initial rating higher than 10 percent for postoperative residuals of prostate cancer for the period prior to June 25, 2010, is denied. Entitlement to an evaluation not to exceed 40 percent for postoperative residuals of prostate cancer is granted for the period June 25, 2010, to October 10, 2011. Entitlement to an initial rating higher than 60 percent for postoperative residuals of prostate cancer for the period October 11, 2011, forward, is denied. Entitlement to TDIU, beginning April 21, 2009, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs