Citation Nr: 1746969 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-02 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 40 percent for post-operative residuals of prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970, including service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which reduced the rating for post-operative residuals of prostate cancer from 40 to 20 percent, effective December 1, 2011. The Veteran testified at a hearing before the undersigned in March 2013. A hearing transcript is of record. In February 2015, the Board determined that the reduction in the rating assigned for post-operative residuals of prostate cancer, from 40 percent to 20 percent, effective December 1, 2011, was proper; however, found that a 40 percent rating was now warranted for his disability based on his March 2013 testimony as well as results from a January 2014 VA examination. Thereafter, the increased rating issue was remanded for further development based on the Veteran's testimony. In a July 2015 rating decision, pursuant to the February 2015 Board remand, the RO assigned the 40 percent rating effective from March 15, 2013, which is the date of the hearing testimony where the Veteran advised he used 3-4 absorbent pads per day. FINDING OF FACT From the March 15, 2013 effective date, the Veteran's service-connected post-operative residuals of prostate cancer is predominantly manifested by voiding dysfunction requiring absorbent materials that must be changed no more than 2 to 4 times per day. CONCLUSION OF LAW The criteria for a rating excess of 40 percent for post-operative residuals of prostate cancer are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Code (Code) 7528 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran and his representative have not alleged that VA failed to fulfill its duty to notify or assist in the development of his claim. Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions, and he will not be prejudiced as a result of the Board proceeding to the merits of his claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Further, in the February 2015 remand, the Board observed that the Veteran testified during his March 2013 hearing that he continued to receive current treatment for his prostate cancer residuals. He noted that he had been receiving and was scheduled to receive "TU" treatment after experiencing an increase in symptoms. Based on the testimony, the Board determined that further clarification was needed. As such, the Board directed the RO to ask the Veteran to clarify the meaning of "TU" treatment and to identify all private and VA treatment for prostate cancer residuals. A June 2015 letter to the Veteran asked him to clarify the meaning of "TU" and to submit (or identify and provide authorization for VA to secure) private treatment records. He did respond. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2016). The Veteran's prostate cancer and residuals have been rated under Code 7528 which provides 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 6 months. If there has been no local reoccurrence or metastasis, the disability shall be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Code 7528. For voiding dysfunction, a 20 percent rating is assigned when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. Voiding dysfunction requiring the wearing of absorbent materials that must be changed two to four times per day is assigned a 40 percent rating. Voiding dysfunction requiring the use of an appliance of the wearing of absorbent materials that must be changed more than four times per day is assigned a 60 percent rating. 38 C.F.R. § 4.115a. 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. Id. Renal dysfunction manifested by albumin and casts with history of acute nephritis; or, hypertension noncompensable under Code 7101, is rated as noncompensable. Renal dysfunction 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 under Code 7101 warrants a 30 percent rating. With constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Code 7101, a 60 percent rating is warranted. 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 warrants an 80 percent rating. 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, warrants a 100 percent rating. Id. In this case, service connection for prostate cancer was granted by way of a September 2006 rating decision, and a 100 percent rating was assigned effective June 2, 2006. A VA examination in March 2007 had shown that the Veteran was using 3 to 4 pads per day and had significant stress incontinence. The 40 percent disability rating was in effect until reduced by the September 2011 rating decision. During his March 2013 hearing, the Veteran testified that although he currently required more absorbent pads, he indeed was only needing to use one pad per day at the time of the November 2010 VA examination. He additionally noted that while he currently experienced urinary frequency three to four times per night, he was not experiencing such frequency at the time of the November 2010 VA examination. As there is no evidence of record of renal dysfunction, the predominant residual disability of the Veteran's prostate cancer has remained voiding dysfunction. The medical evidence of record at the time of the September 2011 rating decision included a VA examination disclosing improvement. The examination is consistent with the other evidence pertaining to that time period. The evidence showed that the Veteran's voiding dysfunction had improved to the point where he only required one absorbable pad per day and his stress incontinence had decreased. As noted, in a February 2015 decision, the Board determined that the reduction was proper. A January 2014 VA genitourinary examination documents the Veteran was again wearing absorbent material that needed to be changed 2 to 4 times per day. A February 2015 VA urology treatment record documents that the Veteran continues to have mild-moderate stress urinary incontinence (SUI) with use of 3 to 4 pads per day. In the present case, the Board finds that a rating in excess of 40 percent for post-operative residuals of prostate cancer is not warranted for any time since the March 15, 2013 effective date. The Veteran states that he experiences residual frequency, nocturia, and urinary incontinence, and requires absorbent material changes 2-4 times daily. The Board finds that the Veteran is competent and credible to report such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)(holding that a lay claimant is competent to provide testimony concerning factual matters of which he has firsthand knowledge). January 2014 VA examination as well as February 2015 VA urology treatment report reflects that the Veteran experiences urinary incontinence that requires that absorbent material be changed no more than 2 to 4 times daily. Although the treatment record documents that the Veteran continues to have mild-moderate SUI, as noted, such do not reflect that he needs to change his absorbent materials more than 4 times a day. Consequently, the Board finds that a higher rating of 60 percent is not warranted because the evidence fails to show that the Veteran's post-operative residuals of prostate cancer results in urinary incontinence that requires the use of absorbent materials that must be changed more than 4 times daily. The Board also notes that the Veteran experiences erectile dysfunction as a residual to his post-operative prostate cancer; however, he has already been service-connected for such disability and awarded special monthly compensation (SMC) based on the loss of use of a creative organ. The Board has considered whether staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), are appropriate for the Veteran's service-connected prostate disability; however, the Board finds that his symptomatology has been stable throughout the applicable period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither has the Veteran raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. The Veteran previously filed a claim for entitlement to a TDIU which was denied in February 2014. There is no indication from the treatment records, to include the January 2014 VA examination report, that the Veteran is unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, to include prostate cancer residuals. Finally, the Board has also considered the benefit of the doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim for a rating in excess of 40 percent for post-operative residuals of prostate cancer. Therefore, the benefit of the doubt doctrine does not apply in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 40 percent for post-operative residuals of prostate cancer is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs