Citation Nr: 1440887 Decision Date: 09/12/14 Archive Date: 09/18/14 DOCKET NO. 11-25 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a higher initial rating for prostate cancer, status-post prostatectomy, rated as noncompensably disabling from August 10, 2010 to April 8, 2012, and 20 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted the Veteran's claim for service connection for prostate cancer status-post prostatectomy. An initial total (100 percent) rating was assigned from March 18, 2010 to August 10, 2010 and a noncompensable rating was assigned thereafter. In April 2013, the RO assigned a 20 percent rating for prostate cancer status-post prostatectomy, effective April 9, 2012. However, inasmuch as a higher rating is available for this disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating has remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has phrased the issue on appeal to reflect that a "staged" rating is in effect. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In January 2014, the Board remanded this matter for additional development and the case now returns for final appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. For the portion of the appeal period from August 10, 2010 to April 8, 2012, the Veteran's service-connected prostate cancer, status-post prostatectomy, was not manifested by urinary incontinence requiring absorbent materials; urinary frequency with a daytime voiding interval between two and three hours, or awakening to void two times per night; or obstructed voiding. 2. For the portion of the appeal period beginning on April 9, 2012, the Veteran's service-connected prostate cancer, status-post prostatectomy, has not been manifested by urinary incontinence requiring absorbent materials that must be changed two to four times per day; urinary frequency with a daytime voiding interval less than one hour, awakening to void five or more times per night; or obstructed voiding. CONCLUSIONS OF LAW 1. For the portion of the appeal period from August 10, 2010 to April 8, 2012, the criteria for an initial compensable rating for prostate cancer, status-post prostatectomy, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2013). 2. For the portion of the appeal period beginning on April 9, 2012, the criteria for an initial rating in excess of 20 percent for prostate cancer, status-post prostatectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In the instant case, a letter dated in March 2010, sent prior to the August 2010 rating decision on appeal, advised the Veteran of the evidence and information necessary to substantiate his underlying service connection claim for prostate cancer as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised him of the information and evidence necessary to establish a disability rating and effective date in accordance with Dingess/Hartman, supra. After the award of service connection in the August 2010 rating decision on appeal, the Veteran appealed with respect to the propriety of the initially assigned rating for his prostate cancer. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his prostate cancer was granted by the RO in August 2010, a 100 percent rating was assigned from March 18, 2010 to August 10, 2010, and a noncompensable rating was assigned effective August 10, 2010. As noted above, the RO assigned a 20 percent rating for prostate cancer, status-post prostatectomy, effective April 9, 2012. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. In this regard, the Board notes that the Veteran receives all of his treatment for his prostate cancer through VA; however, it appears that his January 2010 surgery was performed at the Wake Forest Baptist Medical Center. It does not appear that such records are contained in the paperless file; however, such are not necessary to decide the claim as the surgery (and any records associated therewith) pre-dates the appeal period by eight months. Therefore, they are not relevant to the instant claim and need not be obtained. The Board further observes that the record reflects that the Veteran is in receipt of Social Security Administration (SSA) disability benefits as of January 2004. It does not appear that the agency of original jurisdiction (AOJ) has attempted to obtain such records. However, the Veteran has not reported, and the record does not reflect, that he is in receipt of such benefits due to his prostate cancer. In fact, the award of such SSA benefits pre-dates his cancer diagnosis by almost six years as the latter disability was diagnosed in October 2009. Therefore, the SSA disability award cannot be based on the Veteran's prostate cancer currently at issue. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "not all medical records or all SSA disability records must be sought-only those that are relevant to the [V]eteran's claim. To conclude that all medical records or all SSA disability records are relevant would render the word 'relevant' superfluous in the statute [governing VA's duty to assist]." Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Federal Circuit further held that "relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the [V]eteran's claim." Id. In the instant case, the Board finds that the outstanding SSA records are not relevant to the Veteran's claim decided herein as they do not pertain to his prostate cancer. As such, the SSA records would not raise a reasonable possibility of substantiating the Veteran's claim. Therefore, the Board concludes that the outstanding SSA records are irrelevant to the claim decided herein and it is not necessary to obtain them. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in August 2010 and March 2013 in conjunction with the claim decided herein. The Board finds that these examinations are adequate in order to evaluate the current severity of the Veteran's prostate cancer status-post prostatectomy as they include a review of the record, an examination of the Veteran, and a discussion of the Veteran's urinary symptom, addressing the relevant rating criteria. Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. As noted above, the Board sought further development of the claim in January 2014 to obtain all outstanding VA treatment records. As a result of such remand directives, the AOJ associated with the record VA treatment records from the Salisbury VA Medical Center, including genitourinary treatment. There is no indication that there are any outstanding treatment records. Therefore, the Board finds that the AOJ has substantially complied with the January 2014 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's prostate cancer is rated under the criteria of 38 C.F.R. § 4.115b, Diagnostic Code 7528. For malignant neoplasms of the genitourinary system, a 100 percent rating is assigned. Following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, prostate cancer residuals are rated as voiding dysfunction or renal dysfunction, whichever is predominant. As noted previously, the August 2010 rating decision granted the Veteran's claim for service connection for prostate cancer status-post prostatectomy. An initial total (100 percent) rating was assigned from March 18, 2010 to August 10, 2010 and a noncompensable rating was assigned thereafter. In April 2013, the RO assigned a 20 percent rating for prostate cancer, status-post prostatectomy, effective April 9, 2012. Therefore, the issue before the Board is the propriety of the assigned ratings for residuals of prostate cancer, status-post prostatectomy, for the period from August 10, 2010 to April 8, 2012, and the period beginning April 9, 2012. In the instant case, as will be discussed herein, there is no renal dysfunction shown and, therefore, the Veteran's prostate residuals are rated as voiding dysfunction. The Board also notes that there is no evidence or urinary tract infections. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is assigned when the wearing of absorbent materials that must be changed less than two times per day is required; a 40 percent rating is assigned when the wearing of absorbent materials that must be changed two to four times per day is required; and a 60 percent rating is assigned when the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is required. Urinary frequency is rated 10 percent with daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent 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 rating is assigned for a daytime voiding interval less than one hour, or; awakening to void five or more times per night. Obstructed voiding warrants a maximum schedular rating of 30 percent for urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is assigned for less severe symptoms. 38 C.F.R. § 4.115a. In August 2010, the Veteran was afforded a VA examination. The examiner noted that the Veteran did not have any symptoms of urgency, hesitancy/difficulty starting stream, weak or intermittent stream, dysuria, hematuria, or renal colic. As to the Veteran's urinary frequency, his daytime voiding interval was greater than three hours and he voided once per night. The Veteran reported no urinary leakage. There was no evidence of a history of recurrent urinary tract infections, obstructive voiding, urinary tract stones, renal dysfunction or renal failure, acute nephritis, hydronephrosis, or cardiovascular symptoms. There was no erectile dysfunction. December 2011 VA urology clinic treatment notes show that the Veteran was "voiding well with minimal incontinence." The Veteran stated that he had "good control." There were no reports of the use of absorbent materials. April 2012 VA treatment notes show that the Veteran had mild incontinence and wore one absorbent pad. February 2013 VA treatment notes show that the Veteran reported voiding well with no problems. In March 2013, the Veteran was afforded another VA examination. The examiner noted that the Veteran did not have any symptoms of urgency, dysuria, dribbling, straining to urinate, hematuria, urethral discharge, or renal colic. The Veteran did have symptoms of hesitancy/difficulty starting stream, weak or intermittent stream, and urine retention. His daytime urinary frequency was between one and two hours, and he reported voiding two times each night. There was no evidence of a history of recurrent urinary tract infections, obstructive voiding, urinary tract stones, renal dysfunction or renal failure, acute nephritis, hydronephrosis, or cardiovascular symptoms. The examiner noted that the Veteran had erectile dysfunction and the most likely etiology was vascular disease. February 2014 VA urology clinic treatment notes show that the Veteran had minimal incontinence and wore "guards." In correspondence dated in June 2014, the Veteran stated that he has to change absorbent materials more than four times a day and has continual urine leakage and urinary incontinence. He further stated that his voiding intervals were less than one hour during the day and he awakens to void more than five times each night. In a July 2014 post-remand brief, the Veteran's representative stated, "[i]t is the Veteran's position and contention that he requires the use of one absorbent material each day that must be changed at least 3 times per day..." The Board finds that between August 10, 2010 and April 8, 2012, a compensable rating is not warranted, and a rating in excess of 20 percent is not warranted thereafter. The Board notes that at no time during the appeal period has there been any evidence of local reoccurrence or metastasis of prostate cancer, renal dysfunction, or urinary tract infections, and the Veteran has not contended that such have been present. Therefore, the Veteran's prostate residuals are rated as voiding dysfunction. Between August 10, 2010 and April 8, 2012, the medical evidence of record does not suggest that the Veteran had any urine leakage, post-surgical urinary diversion, urinary incontinence or stress incontinence, and the Veteran was not required to wear absorbent materials. There was no evidence that the Veteran's daytime voiding interval was between two and three hours or that he awakened to void at least two times per night. There was also no evidence of obstructed voiding. The Board also notes that the Veteran has not provided any statements indicating that he experienced such symptoms prior to April 9, 2012. As noted above, as of April 9, 2012, the RO assigned a 20 percent rating based on an April 2012 VA treatment record indicating that the Veteran was required to wear one pad per day. However, the Board finds that the competent, probative evidence of record indicates that a rating in excess of 20 percent is not warranted. The medical evidence shows that as of April 9, 2012, the Veteran has not been required to change absorbent materials at least two times per day; his daytime voiding interval has not been less than one hour, nor does he awaken to void five or more times per night; and he has not had a diagnosis of obstructed voiding. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his prostate cancer, status-post prostatectomy, and notes that he is competent to describe certain symptoms associated with such disability. In a June 2014 statement, the Veteran contended that he is required to change his absorbent material four times each day, that his voiding intervals were less than one hour during the day, and that he awakens to void over five times each night. While he is competent to describe such symptomatology, the Board finds such report to be not credible as his complaints are inconsistent with the February 2014 VA treatment notes showing that the Veteran had minimal incontinence. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Therefore, the Board finds that higher initial ratings for prostate cancer, status-post prostatectomy, rated as noncompensably disabling from August 10, 2010 to April 8, 2012, and 20 percent disabling thereafter, are not warranted. The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected prostate cancer, status-post prostatectomy; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disability is not warranted. The Board has also contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board notes that, pursuant to Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected prostate cancer, status-post prostatectomy, the only service-connected disability on appeal, with the established criteria found in the rating schedule. In this regard, the Board finds that the Veteran's symptomatology associated with his prostate cancer, status-post prostatectomy, is fully addressed by the rating criteria. In this regard, the Veteran's prostate disability is manifested by urinary incontinence and frequency, which are contemplated by the rating criteria. Moreover, the March 2013 VA examiner found that such disability had no effects on his usual daily activities. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected prostate cancer, status-post prostatectomy. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, 22 Vet. App. at 115-16; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the evidence reflects that the Veteran retired in 2008 due to age and he has not alleged that he is unemployable due to his service-connected prostate disability. Moreover, the March 2013 VA examiner found that such disability had no significant occupational effects. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for higher initial ratings for prostate cancer, status-post prostatectomy. Therefore, the benefit of the doubt doctrine does not apply in the instant appeal and his initial rating claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A higher initial rating for prostate cancer, status-post prostatectomy, rated as noncompensably disabling from August 10, 2010 to April 8, 2012, and 20 percent disabling thereafter, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs