Citation Nr: 1342282 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-33 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial rating greater than 40 percent prior to December 20, 2011 and greater than 60 percent from December 20, 2011, for residuals of prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut that, in relevant part, reduced the Veteran's rating from 100 percent to a 40 percent disability rating for residuals of prostate cancer, effective November 1, 2008. The Veteran testified before a representative of the RO in Hartford, Connecticut in May 2008 and March 2009. Transcripts of the hearings have been associated with the claims file. The Veteran's claim was remanded by the Board in October 2011 for additional development. The requested development having been completed, the matter again is before the Board. Following the October 2011 Board remand, a July 2012 rating decision of the Appeals Management Center (AMC) granted an increased rating of 60 percent for the Veteran's prostate cancer residuals, effective from December 20, 2011. Regardless of the AMC's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. FINDING OF FACT Throughout the appellate time period, since November 2008, the Veteran's residuals of prostate cancer are manifested by voiding dysfunction with continual urine leakage requiring the wearing of absorbent materials that must be changed more than four (4) times per day (when taking into account pad changes at night) and night time voiding and pad changes of three (3) to six (6) times per night, but without local reoccurrence or metastasis or evidence of renal dysfunction. CONCLUSION OF LAW The criteria for a compensable evaluation of 60 percent, but no higher, from November 1, 2008 for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.105(e), 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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, all the evidence submitted by or on behalf of the Veteran. 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 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in February 2008 and November 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. As such, the Board finds that the evidence of record is sufficient to appropriately rate the Veteran's disability. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO/AMC provided the Veteran VA examinations in November 2007 and December 2011. The VA examination reports are thorough and supported by treatment records, unless otherwise indicated. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. Specifically, the examinations provide sufficient information to assess the current severity of the Veteran's residuals of prostate cancer. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the November 2011 notice letter, the December 2011 VA examination report, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its October 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was granted service connection for prostate cancer in a March 2007 rating decision and assigned a disability rating of 100 percent, effective November 1, 2006. A January 2008 rating decision proposed reducing the Veteran's prostate cancer residuals to 20 percent. In an August 2008 rating decision, the RO decreased the Veteran's rating for prostate cancer residuals to 40 percent, effective from November 1, 2008. The Veteran claims the rating does not accurately depict the severity of his current condition. Prostate cancer warrants a 100 percent evaluation under DC 7528, for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, DC 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, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Typically, changes in evaluation based upon the above referenced examination or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (2013). In this case, however, the Veteran acknowledges that a reduction is warranted and that he does not meet the requirements for an ongoing 100 percent rating. His contention with the RO actions lies not in the reduction itself, but in the rating assigned. Specifically, the Veteran and his representative have repeatedly argued that his symptoms are consistent with a 60 percent rating under DC 7528. As such, the Board concludes that the propriety of the reduction itself is not at issue. Instead, the Veteran is contesting the 40 percent rating assigned in the August 2008 rating decision and believes that he warrants an increased rating. The above notwithstanding, the Board notes that the RO complied with the requirements of 38 C.F.R. § 3.105(e), to include the provision of a November 2007 VA examination, a January 2008 rating decision proposing reduction, a February 2008 notification of his rights regarding the proposed reduction, a May 2008 hearing before an RO representative, and the subsequent August 2008 rating decision implementing the proposed reduction. See id. According to DC 7528, continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence is rated as follows: requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent); requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent); and requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent). 38 C.F.R. § 4.115b, DC 7528. Urinary frequency is rated as follows: daytime voiding interval between two and three hours, or awakening to void two times per night (10 percent); daytime voiding interval between one and two hours, or awakening to void three to four times per night (20 percent); and daytime voiding interval less than one hour, or awakening to void five or more times per night (40 percent). Id. After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the medical records as a whole support an increased rating for the Veteran's residuals of prostate cancer to 60 percent, but no more, for the entire period on appeal (i.e. from November 1, 2008). Private treatment records indicate the Veteran underwent a radical prostatectomy with lymph node resection in November 2006. A February 2007 private treatment record stated that the Veteran no longer was wearing absorbent pads and had one nightly instance of urination. In May 2007, the Veteran stated that he was continent and had 1 to 2 instances of nocturia per night. He was afforded a VA examination in November 2007. The examiner noted review of the claims file. The Veteran reported that he was working at Target on the night shift, which involved loading and unloading trucks, as well as stocking shelves. The examiner discussed the Veteran's medical history. At present, the Veteran reported losing 4 pounds in the previous year, as well as decreased appetite, fatigue, and general weakness. That said, he remained able to work full time, although he did lose time from work on a weekly basis. The Veteran reported 3 episodes of night urination and urgency per night and 1 instance of incontinence in the past. He denied urinary frequency, dribbling, or incontinence. After examination, the diagnosis was prostate cancer status post radical prostatectomy with residual effects of impotence, urinary frequency, and fatigue. These problems caused mild functional impairment. In a February 2008 statement, however, the Veteran reported, "My residuals include constant wetting of myself with wearing absorbing materials..." During his May 2008 RO hearing, the Veteran stated that he changed absorbent pads 3 to 4 times per day and had 3 to 4 instances of night urination per night. A May 2008 VA treatment record described daily night urination 2 to 3 times. In his September 2008 notice of disagreement, the Veteran stated that he met the criteria for a 60 percent rating, as he was required to wear absorbent pads that he generally had to change more than 4 times daily. During a March 2009 RO hearing, the Veteran stated that he changed his pads 4 times during the day and more on occasions when he was sick with a cold, sneeze, or cough. He also stated that he changed his pads about 5 times overnight. The Veteran also noted that he still worked at Target. A March 2010 VA treatment record also noted continued employment at Target. The Veteran was afforded another VA examination in December 2011. The examiner noted the Veteran's past diagnosis of prostate cancer in 2006. Currently, the Veteran was employed cleaning public transportation buses. He described a lot of urinary leakage at present, requiring approximately 5 to 6 pads per day, particularly with coughing or sneezing. He also changed pads approximately 5 times at night, waking up every 2 hours to do so. The examiner noted that past testing of the Veteran's PSA level had been normal and that the prostate cancer was in remission. There was noted voiding dysfunction requiring the changing of absorbent materials 5 to 6 times during the day and night, with daytime voiding every 2 to 3 hours and nighttime voiding 5 or more times. There was no evidence of obstructed voiding, urinary tract infection, or kidney infection. The Veteran did have erectile dysfunction due to the prostatectomy. The Veteran's related scars were not painful, unstable, or greater than 39 square centimeters. The functional impact of the prostate cancer residuals was urinary leakage and pad changes that required the Veteran to use the restroom often at work, which disrupted his job, and that he did not go out very often due to embarrassment. He also was unable to travel long distances. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology shows disability that more nearly approximates that which warrants the assignment of a 60 percent disability rating, throughout the entire appeal period (i.e. from November 1, 2008). See 38 C.F.R. § 4.7 (2013). The Veteran can attest to factual matters of which he has first-hand knowledge, such as the frequency with which he has to change absorbent pads. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes the Veteran has specifically stated on multiple occasions that he changes his pads more than 4 times per day. Although the Board recognizes that on some occasions the Veteran has reported pad changes less frequently, primarily 3 to 4 changes per day, on those occasions he almost universally also reported getting up during the night for pad changes. Thus, the Veteran's pad changes over the course of an entire 24-hour day would result in at least 4 absorbent pad changes. As such, the Board finds that a disability rating of 60 percent under DC 7528 is warranted for the entire appellate time period. The Board concludes a rating greater than 60 percent is not warranted under DC 7528. A 60 percent rating is the highest rating available for voiding dysfunction. The claims file shows no evidence of active prostate cancer, active prostate cancer treatment, or local metastasis or recurrence of prostate cancer, following his prostatectomy in November 2006. Indeed, multiple records have specifically noted that there has been no recurrence of the cancer. There is no evidence of renal dysfunction. The evidence shows only evidence of erectile dysfunction, discussed below, and urinary incontinence. The Board has considered the arguments of the Veteran and his representative that a separate rating is warranted for urinary frequency. DC 7528, however, clearly states that the Veteran's disability rating for prostate cancer residuals should be rated on "voiding dysfunction or renal dysfunction" and 38 C.F.R. § 4.115b indicates that for issues of voiding dysfunction, "Rate particular condition as urine leakage, frequency, or obstructed voiding." As such, the rating criteria do not permit a separate rating for urinary frequency. In any case, as discussed above, the Board has included the Veteran's instances of nocturia that also required absorbent pad changes as a basis for the increased 60 percent rating. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In regard to complications associated with the Veteran's prostate cancer residuals, the medical evidence indicates his prostatectomy has caused erectile dysfunction. However, the Veteran is separately service connected for erectile dysfunction and is currently receiving special monthly compensation based on loss of use of a creative organ. Nor would a separate rating for the Veteran's scars be applicable in this case. The Board notes that during the pendency of this appeal, the regulations governing scar disabilities were amended. Since the amended regulations apply only to claims received by VA on or after October 23, 2008, that version of the scar regulations will not be applied here. 73 Fed. Reg. 54708 (September 23, 2008). DC 7800 involves scars to the head, face, or neck. See 38 C.F.R. § 4.118, DC 7800 (2008). DCs 7801 (deep scars or scars causing limited motion and exceed 6 square inches (39 sq. cm.)), 7802 (superficial scars 144 square inches (929 sq. cm) or larger), 7803 (unstable scars), 7804 (superficial scars painful on examination), and 7805 (scars that cause limitation of motion) similarly do not apply here given the medical evidence indicated above. Id, DCs 7801 to 7805 (2008). In this case, the Veteran's associated scars are not painful, unstable, or sufficiently large enough to afford a separate rating. The Board further notes that there is no documentation that the scars are deep or cause limitation of motion. As such, the Veteran's scars are not shown to be of sufficient size or cause sufficient complaints or complications to qualify for a separate rating under DCs 7801 to 7805. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating of 60 percent, but no more, from November 1, 2008 is warranted for the entire period on appeal. See Fenderson, 12 Vet. App. at 119. Extraschedular Considerations 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). 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) (2013). 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 prostate cancer residuals is inadequate. A comparison between the level of severity and symptomatology of the Veteran's prostate cancer residuals with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, the Veteran's primary complaints are rating criteria considers renal and voiding dysfunction, urinary frequency, obstructed voiding and urinary tract infections. This is precisely the symptomatology contemplated under 38 C.F.R. § 4.115b. Thus, the Veteran's current schedular rating under DC 7528 is adequate to fully compensate him for his prostate cancer residuals on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. As a final matter, as the Veteran has not submitted evidence of unemployability that is related to his service-connected prostate cancer residuals, and as the record does not otherwise raise the issue, the Board expressly finds that entitlement to a total disability evaluation based on individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an evaluation of 60 percent from November 1, 2008, for residuals of prostate cancer is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs