Citation Nr: 1633088 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 11-30 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial compensable rating prior to February 17, 2016, for residuals of prostate cancer, status post radical prostatectomy with urinary incontinence and erectile dysfunction, and a rating in excess of 40 percent after February 17, 2016. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1967 to September 1973. He had service in the Republic of Vietnam from December 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by or on behalf of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA). The determination established service connection with an assigned 0 percent rating effective from April 10, 2009. In December 2015, the case was remanded for additional development. A subsequent March 2016 rating decision granted an increased 40 percent rating effective from February 17, 2016. The issue on the title page has been revised to reflect the matter currently on appeal. FINDINGS OF FACT 1. Prior to December 1, 2009, the Veteran's service-connected residuals of prostate cancer were manifested by no local recurrence of cancer or metastasis and no renal dysfunction, continual urine leakage, obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization, or urinary frequency with daytime voiding interval between 2 and 3 hours and awakening to void 2 times per night. 2. Effective from December 1, 2009, to February 17, 2016, the Veteran's service-connected residuals of prostate cancer were manifested by credible evidence of increased urinary frequency with daytime voiding intervals not greater than between 1 and 2 hours or awakening to void 4 times per night. 3. After February 17, 2016, the Veteran's service-connected residuals of prostate cancer are manifested by continual urine leakage requiring the use of absorbent materials which must be changed 2 to 4 times per day with no local recurrence of cancer or metastasis and no renal dysfunction, or obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to December 1, 2009, for residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.115a, 4.115b Diagnostic Code 7528 (2015). 2. The criteria for an increased 20 percent rating effective from December 1, 2009, to February 17, 2016, for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.115a, 4.115b Diagnostic Code 7528 (2015). 3. The criteria for a rating in excess of 40 percent rating after February 17, 2016, for residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.115a, 4.115b Diagnostic Code 7528 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The duty to notify has been met. See May 2009 and June 2009 VCAA correspondence. The Veteran has not alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. With regard to the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, non-VA (private) treatment records, and statements in support of the claim. There is no evidence of any additional existing pertinent records. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The Board will 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). It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2 (2015). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2015). Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The following section provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a (2015). For malignant neoplasms of the genitourinary system a 100 percent rating is provided. It is noted that 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 recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2015). Ratings are provided for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular (100 percent). For renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion (80 percent), with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling (60 percent), with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling (30 percent), and with albumin and casts with history of acute nephritis; or, hypertension that is non-compensable (0 percent). 38 C.F.R. § 4.115a. For voiding dysfunction, particular conditions are to be rated as urine leakage, frequency, or obstructed voiding. 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 4 times per day (60 percent); requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent); and requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent). 38 C.F.R. § 4.115a. For urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night (40 percent); with daytime voiding interval between one and two hours, or; awakening to void three to four times per night (20 percent); and with daytime voiding interval between two and three hours, or; awakening to void two times per night (10 percent). 38 C.F.R. § 4.115a. For obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization (30 percent); and with 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 peak flow rate (less than 10 cc/sec), 3. Recurrent urinary tract infections secondary to obstruction, and 4. Stricture disease requiring periodic dilatation every 2 to 3 months (10 percent). 38 C.F.R. § 4.115a. The pertinent evidence in this case shows that the Veteran application for VA compensation benefits was received on April 10, 2009, and that private treatment records demonstrate he underwent a radical retropubic prostatectomy in November 1998. A March 2004 report noted he had been referred for evaluation of recurrent kidney stones, but that he complained of a feeling of incomplete bladder emptying which was something that was of fairly recent onset. The examiner's impression included possible obstructive voiding symptoms. Records show he underwent procedures in April 2004 including attempted removal of bladder calculus for symptoms of bladder outlet obstruction with stones. A June 2004 report noted no obvious stones were seen on a computerized tomography scan and that overall he was doing well except for some voiding symptoms. His private medical care provider in June 2005 included a diagnosis of uric acid bladder stone. It was noted that surgical intervention had been advised for a mild bladder neck contracture, but that the Veteran was concerned about incontinence with any urethral instrumentation. Oral medication treatment was prescribed and any worsening symptoms of hematuria or obstructive symptoms were to be reported. Private treatment records dated in June 2007 noted the Veteran's prostate-specific antigen (PSA) testing had remained undetectable and that he had remained completely continent. A status post open cystolithotomy secondary to bladder calculus procedure was performed. A May 2009 report noted the procedure had no effect on his urinary control. VA examination in June 2009 included diagnoses of prostate cancer Gleason rating 6, radical prostatectomy with complications of erectile dysfunction and urinary incontinence. The examiner noted there was no evidence of bladder incontinence, no overt signs of kidney disease, no testicular atrophy, and adult diapers were not worn. There was occasional post-void dribbling, but the condition did not affect his daily activities. It was noted the Veteran was working full time as a real estate agent and his genitourinary ailments did not affect his usual occupation. The examiner found that the Veteran's kidney stones and urinary bladder stones were not due to prostate cancer or the subsequent prostatectomy. In his notice of disagreement received on December 1, 2009, the Veteran, in essence, asserted that treatment records dated from March 2004 to June 2006 demonstrated his voiding disorder symptoms. He stated that he had increased post-void dribbling and had developed pre-void dribbling, but that he had not gotten to the point where he needed to use pads. He reported that he urinated 7 to 12 times during the day and 3 to 7 times at night with 4 awakenings the most frequent. He also stated that his stream was weak and lacked force. He asserted that his frequent daytime urinations negatively affected his concentration and performance at work and that frequent urination at night negatively affected his ability to sleep. In his October 23, 2011, VA Form 9 he requested a 20 percent rating due to symptoms including a requirement that he wear absorbent materials, slow stream, repeated voiding, and erectile dysfunction. He reported that his post-void dribbling. He also endorsed urinary incontinence required changing absorbent material less than twice a day, that he had a slow or weak stream due to a urethra obstruction as a residual of his prostate surgery, that he had nighttime voiding 3 to 5 times, and that he had daytime voiding about every 3 hours. VA examination on February 17, 2016, included a diagnosis of prostate cancer in remission with a radical prostatectomy in November 1998 with residual disabilities of urinary incontinence, frequency, and obstructive symptoms and erectile dysfunction that did not respond to medical treatment. The examiner noted the voiding dysfunction caused urinary leakage that required absorbent material which must be changed 2 to 4 times per day. Use on an appliance was not required. There was increased urinary frequency with daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. Signs of symptoms of obstructed voiding included hesitancy, slow stream, weak stream, and decreased force of stream, without marked signs or symptoms. There was no evidence of any history of recurrent symptomatic urinary tract or kidney infections and no renal dysfunction due to the condition. There were no associated painful or unstable scars or related scars greater than 39 square centimeters. The disability residuals were noted to be severe, but did not impact the Veteran's ability to work. Based upon the evidence of record, the Board finds that prior to December 1, 2009, the Veteran's residuals of prostate cancer were manifested by no evidence of cancer recurrence, renal dysfunction, continual urine leakage, or obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization. The evidence did not demonstrate urinary frequency with daytime voiding interval between 2 and 3 hours or awakening to void 2 times per night. The Veteran's erectile dysfunction is separately rated with an award of special monthly compensation due to loss of use of a creative organ and has not been developed as an issue on appeal; however, there is no indication of any additional erectile dysfunction disability to the penis or testes. Therefore, entitlement to a compensable schedular rating prior to December 1, 2009, is not warranted. The Board finds, however, that the Veteran's December 1, 2009, report that he urinated 7 to 12 times during the day and 3 to 7 times at night with 4 awakenings the most frequent is credible evidence as to the severity of his disability at that time. The subsequent February 2016 VA examination findings that he had severe disabilities as residuals of his prostate cancer, including urinary frequency, clearly support his earlier statements. There is no evidence that prior to February 17, 2016, the Veteran required the use of absorbent materials 2 times or more per day nor that he had predominant manifestations of daytime (assuming a 12-hour day) voiding intervals less than 1 hour or awakening to void 5 or more times per night. There is no evidence of local recurrence of cancer or metastasis and no probative evidence of renal dysfunction, obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization, or additional erectile dysfunction disability to the penis or testes. Therefore, an increased 20 percent rating, but no higher, is warranted for the residuals of prostate cancer for the period from December 1, 2009, to February 17, 2016. The Board further finds that after February 17, 2016, the Veteran's service-connected residuals of prostate cancer are manifested by no worse than continual urine leakage requiring the use of absorbent materials which must be changed 2 to 4 times per day. There is no evidence of local recurrence of cancer or metastasis and no probative evidence of renal dysfunction, obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization, or additional erectile dysfunction disability to the penis or testes. On February 17, 2016, it was noted the Veteran had urinary frequency with daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. Therefore, entitlement to a rating in excess of 40 percent after February 17, 2016, is not warranted. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extra-schedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). Under Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2015); Thun, 22 Vet. App. at 116. The schedular evaluations in this case are not inadequate. Records show service connection is established for residuals of prostate cancer, status post radical prostatectomy with urinary incontinence and erectile dysfunction. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the objective manifestations of the service-connected disability is congruent with the disability picture represented by the disability ratings assigned herein. The examiners clearly noted the Veteran's manifest symptoms and impairment due to these disorders. Although the Veteran is shown to have reported difficulty with concentration and performance at work, the overall evidence indicates he is gainfully employed and did not impact his ability to work. Given the foregoing, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's specific disability because the rating criteria reasonably describe his disability level and symptomatology. In this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Therefore, referral is not warranted. Finally, when a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC ). See Rice v. Shinseki, 22 Vet. App. 447; see also, Akles v. Derwinski, 1 Vet. App. 118 (1991). The record shows that the Veteran is presently employed, which negates a claim for TDIU. Regarding SMC, the Veteran is receiving SMC for loss of use of a creative organ and he does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more. There is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disability results in loss of use of a limb, blindness or deafness. 38 U.S.C.A. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer an issue of entitlement to SMC at this time. ORDER Entitlement to an initial compensable rating prior to December 1, 2009, for residuals of prostate cancer, status post radical prostatectomy with urinary incontinence and erectile dysfunction, is denied. Entitlement to an increased 20 percent rating effective from to December 1, 2009, to February 17, 2016, for residuals of prostate cancer, status post radical prostatectomy with urinary incontinence and erectile dysfunction, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 40 percent after February 17, 2016, for residuals of prostate cancer, status post radical prostatectomy with urinary incontinence and erectile dysfunction, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs