Citation Nr: 1800517 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-18 556A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a higher initial rating for prostate cancer, rated as 10 percent until March 25, 2016 and as 40 percent from March 26, 2016. REPRESENTATION The Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A November 2016 rating decision granted service connection for post-traumatic stress disorder (PTSD) with a disability rating of 100 percent effective from the date the claim was filed, August 27, 2010. Thus, this matter is no longer on appeal. FINDINGS OF FACT 1. Prior to September 6, 2011, the Veteran's prostate cancer residuals caused voiding dysfunction characterized by a daytime voiding interval of between two and three hours and voiding twice each night. 2. From September 7, 2011 until May 26, 2015, the Veteran's prostate cancer residuals caused voiding dysfunction characterized by a daytime voiding interval of between two and three hours and urinary leakage requiring the use of absorbent padding which required changing less than two times per day. 3. From May 27, 2015 the Veteran's prostate cancer residuals caused voiding dysfunction characterized by voiding of five times per night. CONCLUSIONS OF LAW 1. Prior to September 6, 2011, the criteria for an initial disability rating in excess of 10 percent for residuals of prostate cancer have not been met. 38 C.F.R. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7527 (2017). 2. From September 7, 2011 to May 26, 2015, the criteria for an initial disability rating of 20 percent, but no higher, for residuals of prostate cancer have been met. 38 C.F.R. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7527 (2017). 3. As of May 27, 2017, the criteria for a disability rating of 40 percent, but no higher, for residuals of prostate cancer have been met. 38 C.F.R. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7527 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 . When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); 38 C.F.R. § 4.3. Prostate cancer is addressed by 38 C.F.R. § 4.115(b) Diagnostic Code 7527. The disability is rated, under 38 C.F.R. § 4.115a, using symptoms of urinary tract infection or voiding dysfunctions, depending on which symptoms are most prominent The Veteran's predominant symptom is voiding dysfunction. Voiding dysfunction is evaluated as urine leakage, frequency, or obstructive voiding. In this regard, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent rating; the need to wear absorbent materials which must be changed two to four times per day warrants a 40 percent rating; and the use of an appliance or wearing of absorbent materials which must be changed more than four times per day calls for a 60 percent rating. 38 C.F.R. § 4.115a. Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating; a daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating; and a daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent rating. Id. A VA examination was provided in October 2010. At that time the Veteran reported a slow stream but no other trouble with urination. Urology treatment notes from February and December 2010, and August 2011 show that the Veteran reported no urinary difficulties. Subsequently, a VA prostate cancer examination was provided on September 7, 2011 to evaluate the Veteran's prostate cancer symptoms. The Veteran reported leakage after urination which he addressed by using a handkerchief as absorbent padding. He also reported weak urine stream, urination eight times per day (frequency of every two to three hours), and twice each night. The examination of September 7, 2011 is the first mention of the use of absorbent materials by the Veteran. The Board finds that after resolving any reasonable benefit of the doubt in favor of the Veteran, use of a handkerchief is the equivalent of use of absorbent material to control urinary leakage within the meaning of term "absorbent material" used in the schedular rating criteria. The Board therefore finds that a 20 percent rating is warranted from September 7, 2011. VA examination of October 26, 2016 and treatment notes from March 23, 2016 reflect the Veteran reported waking to void four or five times each night. Based on this evidence, the RO assigned a 40 percent rating effective March 23, 2016. The 40 percent rating is called for when voiding increases to five times or more per night. Id. Further review of the treatment records at the Hines VA Hospital reveals that the Veteran first reported significant hesitancy, post void dribbling and voiding four or five times per night at a urology outpatient visit of May 27, 2015. These same increased symptoms are reported on August 28, 2015, December 23, 2015, and January 29, 2016. Again resolving any reasonable benefit of the doubt in favor of the Veteran, the Board finds the Veteran's voiding dysfunction symptoms more nearly approximated the criteria for a 40 percent disability as of May 27, 2015. ORDER Prior to September 6, 2011, entitlement to an initial disability rating for residuals of prostate cancer in excess of 10 percent is denied. From September 7, 2011 to May 26, 2015, entitlement to a disability rating of 20 percent, but no higher, for residuals of prostate cancer is granted. On and after May 27, 2015, entitlement to a disability rating of 40 percent, but no higher, for residuals of prostate cancer is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs