Citation Nr: 1803093	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  06-31 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania



THE ISSUE

Entitlement to a rating in excess of 10 percent for residuals of prostate cancer for the period of December 19, 2005 to May 15, 2012.



ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel









INTRODUCTION

The Veteran served on active duty from March 1948 to July 1970.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

In July 2008, the Board remanded the Veteran's claim for additional development. 

In February 2017, the Board denied the Veteran's claim of entitlement to an initial compensable rating prior to December 18, 2005 for residuals of prostate cancer and that issue is no longer before the Board. The Board also remanded the issue of entitlement to an initial rating in excess of 10 percent from December 19, 2005 for residuals of prostate cancer for additional evidentiary development.

During development, an October 2017 rating decision awarded the Veteran a 100 percent rating for recurrence of prostate cancer, effective May 15, 2012. This date was established based on medical treatment records which documented that the Veteran's prostate cancer had returned at that time. Thus, the issue of a rating in excess of 10 percent for the residuals of prostate cancer for the period of December 19, 2005 to May 15, 2012 has returned to the Board for further consideration.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).




FINDING OF FACT

For the period of December 19, 2005 to May 15, 2012 , the preponderance of the evidence shows that the Veteran's residuals of prostate cancer were manifested, at worst, by urinary leakage which did not require the wearing of absorbent materials, daytime voiding at intervals of two to three hours, awakening to void up to two times per night, and/or obstructed voiding without the use of a catheter.


CONCLUSION OF LAW

For the period of December 19, 2005 to May 15, 2012, the criteria for a rating in excess of 10 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.115, Diagnostic Code 7528 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In the case at hand, the requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of the application. VA has advised the Veteran of the information and evidence needed to substantiate the claim. VA has also provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the October 2017 supplemental statement of the case.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are necessary for the applicable appeal period. Notably, the Veteran was scheduled for a new VA examination as he requested, but he failed to attend. Thus, there is currently no error or issue which precludes the Board from addressing the merits of the appeal.

Finally, in reaching this determination, the Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Analysis

Since December 19, 2005, the Veteran's prostate cancer disability was rated as 10 percent disabling based on residuals. The Veteran disagrees with the assigned 10 percent rating, effective December 19, 2005 to May 15, 2012. As noted above, the Veteran's prostate cancer was in remission during this time. Unfortunately, the Veteran's prostate cancer returned and he has been assigned a 100 percent rating, effective May 15, 2012. In essence, the Board will address the Veteran's symptomatology prior to this time. 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436   (2002). 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). 

Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115(a). 

Malignant neoplasms of the genitourinary system are to be rated 100 percent. 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 § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115(b), Diagnostic Code 7528. 

The Veteran's prostate cancer was in remission during this time period. Therefore, VA rated his residuals. Id. Specifically, VA rated his prostate cancer residuals under voiding dysfunction. 38 C.F.R. § 4.14. 

Under 38 C.F.R. § 4.115a, 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 warrants a 20 percent rating; requiring the wearing of absorbent materials which must be changed 2 to 4 times per day warrants a 40 percent rating; requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. Id. 

Urinary frequency with: daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating; daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating; daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. Id. 

Obstructed voiding with: obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable rating; 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. 4. Stricture disease requiring periodic dilatation every 2 to 3 months warrants a 10 percent rating; urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. 

The Veteran was initially afforded an examination in January 2008. The examiner reported a hesitancy of micturition and a slow stream but no frequency, no nocturia, or urgency, no dribbling, no pain on micturition, no hematuria, and no perineal pain.  

A subsequent examination in December 2011 noted slow urinary flow and hesitancy, with daytime frequency of about four times per day, with zero times at night. No urgency, pain, bleeding, leakage, or need for dilation was reported. There was no recurrence of cancer.

In May 2012, the Veteran stated that his urinary problems had worsened and that urination was now very difficult.

Pursuant to the Board's February 2017 remand, the Veteran was scheduled for another VA examination in September 2017. However, it appears that the Veteran did not attend this examination. According to 38 C.F.R. § 3.655(b) (2017), when a claimant fails to report for an examination (without good cause) scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. A claimant failing to report for a scheduled examination must show good cause for not doing so. See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). Here, while an examination report would clearly be helpful, the Board observes that the Veteran was later awarded a 100 percent rating for his prostate cancer based on medical treatment reports received during development. These records denote an assessment of prostate cancer, which returned on May 15, 2012 and a VA examination to assess the Veteran's symptomatology during the time period on appeal is no longer necessary. 

Medical treatment records were obtained for the period after March 1, 2010. During a 48th Medical Group Urology Clinic visit on May 15, 2012, records document a recent history of significant rise in Prostate Specific Antigen (PSA) over the previous year. The Veteran requested additional radiation treatment, but his providers indicated that no more radiation would be possible. Androgen Deprivation Therapy (ADT) with Lupron injections was started on this date at three month intervals without any specific date of expected completion. All records following this date provide a diagnosis of recurrent prostate cancer. On January 15, 2013, the Veteran's health care was discontinued at the 48th Medical Group due to difficulty with traveling. On the last documented treatment note, the Veteran indicated that he was transferring care to the National Health Service (NHS) in the United Kingdom. The Veteran's provider reminded him to follow-up with the NHS provider to ensure that he continues to receive the Lupron injections at the regularly scheduled intervals. The Board notes that the available records provide no specific mention of any other genitourinary symptoms during the time period on appeal.

The Board has considered the Veteran's lay assertions as to the symptomatology and the severity of his condition, but, to the extent the Veteran believes that he is entitled to a higher rating than assigned herein, concludes that the findings during of the medical treatment providers are more probative than the lay assertions to that effect. The Board has also reviewed the Veteran's treatment records throughout the period on appeal. The records are generally negative for any additional genitourinary complaints and are otherwise consistent with the 10 percent rating assigned.

Upon review, the Board finds the evidence does not indicate that a disability rating in excess of 10 percent is warranted for the period of December 19, 2005 to May 15, 2012. At worst, the Veteran's residuals of prostate cancer were manifested by a daytime voiding interval of two to three hours and nighttime awakening to void up to two times, along with symptoms of obstructed voiding that did not require the use of an appliance such as a catheter. Accordingly, none of the criteria for a disability rating in excess of 10 percent have been met.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



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ORDER

Entitlement to a rating in excess of 10 percent for residuals of prostate cancer for the period of December 19, 2005 to May 15, 2012, is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs