Citation Nr: 1801339 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-31 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating for prostate cancer residuals from August 1, 2010, currently evaluated as 60 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board remanded the claim for further development. FINDING OF FACT The Veteran's prostate cancer residuals have been manifested by urinary leakage or incontinence requiring the wearing of absorbent materials that must be changed more than four times per day and daytime interval voiding between two and three hours. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.16, 4.115a, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in March 2010. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Stegall Compliance The Board finds there has been substantial compliance with its January 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) III. Increased Rating in excess of 60 percent for prostate cancer Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's service-connected residuals of prostate cancer are currently rated as 60 percent disabling effective August 1, 2010, based on voiding dysfunction. The Veteran assets that his prostate cancer is more serious than the 60 percent rating depicts. The Veteran stated that a higher evaluation of 80 percent is warranted based on (1) weight loss, (2) lethargy, (3) weakness, and (4) family problems. See VA Form 9 entered in Caseflow Reader in November 2012. The rating criteria indicate that voiding dysfunction should be rated as urine leakage, urine frequency, or obstructed voiding, whichever is the predominant area of dysfunction. See 38 C.F.R. § 4.115a. The Board notes that the maximum rating under urine frequency and obstructed voiding is 40 and 30 percent, respectively. Since the Veteran is currently at 60 percent, urine frequency and obstructed voiding will not be considered. Additionally, as noted above, the Veteran is at the maximum rating under voiding dysfunction and, as will be discussed below, the Veteran's cancer is in remission. Therefore, the Board will consider whether a higher rating is available under renal dysfunction or on an extraschedular basis. Regarding renal dysfunction, an 80 percent rating is warranted for 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. See 38 C.F.R. § 4.115a (2017). A 100 percent rating is warranted for 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. Id. From September 2008 to May 2016, the Veteran was treated at the Augusta Uptown VAMC. See Medical Treatment record entered in Caseflow Reader in January 2017 at 249. The records document the prostate specific antigen (PSA) readings to include 0.017, 0.022 ng/mL, i.e., the results were normal. See id. at 111. In August 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his erectile dysfunction. The Veteran stated that he urinated eight times at intervals of every 30 minutes. During the nights, he urinated six times at intervals of one hour. He had problems starting urination, and his urine flow was weak. The Veteran experienced urinary incontinence which required a pad as often as six times per day. He did not require an appliance. The examiner found that there was residual sequelae from the prostate problem including urinary incontinence. In April 2017, the Veteran was afforded a VA examination to determine the severity of his prostate cancer. Following his surgery, the Veteran had not had further treatment, and he had not required chemotherapy or radiation treatment. During the examination, the Veteran stated that he lost over 100 lbs. after his prostate surgery. He attributed the weight loss to the cancer, the adjustments, diabetes, and "becoming depressed." The examiner noted that the Veteran had voiding dysfunction that caused urine leakage and required absorbent material which had to be changed two to four times per day. The Veteran did not require an appliance. He experienced daytime voiding intervals between two and three hours and nighttime awakening to void three to four times. The voiding dysfunction caused signs or symptoms of obstructed voiding to include slow, weak, and decreased force of stream. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran had a scar that was related to his prostate cancer surgery. However, the scar was not painful or unstable, had a total area equal to or greater than 39 square cm (6 square inches), or located on his head, face, or neck. The Veteran did not have any other residual conditions and/or complications or renal dysfunction due to prostate cancer. There were no significant diagnostic test findings and/or results. The examiner noted that the prostate cancer was in remission, and after ten years, it was unlikely to be recurrent. Regarding the Veteran's weight loss, the examiner noted that from a clinical standpoint, since the prostate cancer was contained and did not spread, the Veteran did not have cachexia or weight loss directly related to the cancer. He also did not undergo radiation and therefore did not have GI complications of maldigestion or diarrhea. The examiner attributed the Veteran's weight loss to his diagnosis of diabetes mellitus. In May 2017, a Disability Benefits Questionnaire was completed. The examiner stated that the Veteran's prostate cancer had an impact on the Veteran's ability to work. The Veteran's was limited in the amount he could lift, the amount of time he could stand, and amount of pressure that could be applied to his abdomen, and long distance driving due to need to be near a rest room secondary to his urinary incontinence. The examiner also stated since the Veteran's prostate cancer prostatectomy surgery, the Veteran has had severe urinary incontinence requiring three to five pads per day. The urinary incontinence has limited the Veteran's travel from home due to hygiene concern issues. He has also suffered erectile dysfunction post-prostate surgery. The findings did not reveal continuation of prostate cancer or any additional surgeries, x-rays, or anti-neoplastic chemotherapy. There was no residual evidence of metastasis of prostate cancer. The examiner confirmed the Veteran prostate cancer diagnosis but noted that the cancer was in remission. The Board finds that an evaluation in excess of 60 percent has not been warranted during the rating period. The Veteran is in receipt of the maximum 60 percent disability rating based on voiding dysfunction. A higher rating could only be assigned based on the criteria for renal dysfunction. In this case, the VA examiner noted that the Veteran did not have renal dysfunction due to prostate cancer. Accordingly, the criteria for a higher disability rating in excess of 60 percent have not been met. To the extent that the Veteran argues that he should be entitled to higher ratings for his prostate cancer residuals, his opinion is outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's prostate and reported in detail all facets of impairment involved. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). 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 a rating in excess of 60 percent for prostate cancer residuals based on renal dysfunction. 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. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. 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 Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. With respect to the first prong of Thun, the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected prostate cancer residuals 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 residuals is fully addressed by the rating criteria. Specifically, such disability is manifested by urinary incontinence and frequency, which are contemplated by the rating criteria. The Board notes that on the Veteran's November 2017 VA Form 9, the Veteran noted weight loss, lethargy, and weakness which prevented him from performing normal home functions, and family problems as reasons for an increase rating from 60 percent to 80 percent. However, the April 2017 examiner attributed the Veteran's weight loss to another disability, diabetes, and not the Veteran's prostate cancer. Regarding the Veteran's lethargy, the Veteran himself attributed his lethargy to medication he took for sleep and his nerves. This was confirmed by VA treatment records. See VA Form 9 entered in Caseflow Reader in November 2012; see also Medical Treatment Record-Government Facility entered in Caseflow Reader in January 2017, p. 42. Therefore, the Veteran's weight loss and lethargy are not attributed to the Veteran's prostate cancer. Regarding the Veteran's claim for weakness, during his June 2013, September 2014 evaluations, the Veteran's primary care provider noted that the Veteran was in no distress. The examiner noted the Veteran muscle strength in all extremities to be normal. The Veteran was encouraged to join MOVE in order to lose weight. See Medical Treatment Record-Government Facility entered in Caseflow Reader in January 2017 at 69 and 120. Additionally, no examiner has attributed the Veteran's claimed weakness to his prostate cancer. The Board also notes that there is no medical evidence attributing the Veteran's prostate cancer to any mental health disorder and/or family issues. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected prostate cancer residuals. 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 under Thun. 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). 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 a rating in excess of 60 percent for prostate cancer residuals. 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. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. ORDER A rating higher than 60 percent for the residuals of prostate cancer is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs