Citation Nr: 1509097	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  13-10 630	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an initial evaluation in excess of 20 percent for residuals of prostate cancer.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran had active military service from April 1964 to October 1969 

This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. 

The Veteran testified before the undersigned Veterans Law Judge in March 2014, at a Travel Board hearing conducted in Phoenix, Arizona; a transcript of that hearing is associated with the claims folder and has been reviewed.


FINDING OF FACT

The Veteran's prostate cancer has been manifested by no more than urinary frequency with voiding requiring the use of an absorbent material which must be changed 2 to 4 times per day. His prostate cancer is not manifested by renal dysfunction.  


CONCLUSION OF LAW

The criteria for an initial 40 percent rating for residuals of prostate cancer, and no higher, have been met.  38 U.S.C.A §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2014).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in June 2010. 

This appeal arises from the Veteran's disagreement with an initial evaluation following the grant of service connection for residuals of prostate cancer. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

VA has a duty to assist the Veteran in the development of the claim. The claims file includes medical records, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain.  

A VA examination was obtained in July 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded an adequate VA examination. The report includes a clinical examination and the Veteran's reported symptoms. The report provides findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained.

Rating Disabilities in General

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. 

Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Residuals of Prostate Cancer  

The Veteran's service-connected residuals of prostate cancer have been rated under Diagnostic Code 7528. 38 C.F.R. § 4.115b (2014). The Veteran had a robotic prostectomy in November 2007. In an April 2011 decision, the Veteran was rated as 20 percent disabling for prostate cancer, status post robotic prostectomy with post prostectomy urinary bladder dysfunction with stress incontinence under this code.

Under 38 C.F.R. § 4.115b, DC 7528, a single disability rating of 100 percent is warranted for malignant neoplasms of the genitourinary system. Moreover, this rating shall continue beyond the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures 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, residuals are to be rated on voiding dysfunction or renal dysfunction, whichever is predominant. The claims folder reflects the Veteran experiences voiding dysfunction as a residual of prostate cancer. The claims folder does not reflect that the Veteran experiences renal dysfunction. 

Voiding dysfunction will be rated on the basis of urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a. The Veteran has been rated based on urine leakage.

For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, requiring the wearing of absorbent materials which must be changed less than 2 times per day, a 20 percent rating is warranted.  With the wearing of absorbent materials which must be changed 2 to 4 times per day, a 40 percent rating is warranted. With the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day is required, a 60 percent rating is warranted.  Id.

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

A July 2010 VA medical examination reflects that the Veteran experiences urinary incontinence with physical activity that increases his intra-abdominal pressure causing him to lose control of his bladder and leaving his underwear damp or wet. The examination also notes the Veteran's need for wearing absorbent material. During the March 2014 Travel Board hearing, the Veteran testified that must change his absorbent pads at least 2 times per day due to incontinence. Based on the medical evidence and credible lay testimony, the Board finds that a 40 percent rating is warranted for residuals of prostate cancer.

The evidence does not reflect nor does the Veteran allege the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. Rather, the Veteran stated that he does not have to change his absorbent pads more than 4 times per day. ( See hearing transcript page 12). Thus, an evaluation exceeding 40 percent is not warranted. 

The Board has considered whether there are any other applicable diagnostic codes which would provide a higher rating, but the Board finds there is not. 

In conclusion, the Board finds a 40 percent rating under Diagnostic code 7528, but not higher, is warranted.

Extraschedular 

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). An extra-schedular disability rating would be 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 Thun v. Peake, 22 Vet. App. 111 (2008). 38 C.F.R. § 3.321(b)(1).

The Board finds that the symptoms associated with the Veteran's residuals of prostate cancer is specifically contemplated within the diagnostic codes. In short, the rating criteria reasonably describe the Veteran's residuals of prostate cancer symptomatology.

Moreover, the evidence does not reflect that the Veteran's disability has met the second prong of Thun (i.e. marked interference with employment or frequent periods of hospitalization). The Board determines that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. 

Total rating for compensation purposes based on individual unemployability (TDIU)

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki,  22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record does not indicate that the Veteran has been unable to maintain substantial gainful employment due to his residuals of prostate cancer. Thus, the issue of entitlement to TDIU has not been reasonably raised by the record.


ORDER

Entitlement to an initial rating of 40 percent disabling, and no higher, for residuals of prostate cancer, is granted, subject to the laws and regulations controlling the award of monetary benefits




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs