Citation Nr: 1805782 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-31 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for renal cell carcinoma with metastasis (including to the lung, omentum (abdomen), liver, lymph nodes, muscles, bone, subcutaneous tissues (left scapular, left gluteus maximus and proximal posteromedial left thigh) and brain), status post right radical nephrectomy, left parietal craniotomy and bilateral femur intramedullary nailing (hereafter "metastatic RCC"). 2. Entitlement to an initial compensable disability rating for service-connected prostate adenocarcinoma, status post prostatectomy, to include a total disability rating due to individual unemployability (TDIU). 3. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction. 4. Entitlement to a TDIU due to service-connected disabilities. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Veteran and appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had active military service from May 1972 to May 1974. The Veteran died in September 2011. The appellant is the Veteran's surviving spouse and has been substituted as the claimant in this appeal pursuant to 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2017). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for metastatic RCC, but granted service connection for prostate adenocarcinoma, status post prostatectomy, and erectile dysfunction as secondary thereto, effective July 8, 2010. Zero percent disability ratings were assigned for both disabilities, and special monthly compensation for loss of use of a creative organ was granted due to the erectile dysfunction. The Veteran's appeal arises from his disagreement with the denial of compensable disability ratings for his now service-connected disabilities, as well as the denial of service connection for RCC. In addition, in his Notice of Disagreement, the Veteran raised the issue that he was housebound and unable to work due to his claimed conditions, thereby raising claims for special monthly compensation (SMC) and TDIU. In September 2007 (after the Notice of Disagreement was received but before the Statement of the Case was issued), the Veteran and the appellant appeared and testified at a hearing at the RO before a Decision Review Officer, and the transcript of that hearing is associated with the record. The Board further notes that the Veteran, while alive, also raised the issue of entitlement to special monthly compensation based on the need of regular aid and attendance of another person. See September 7, 2011 Buddy/Lay Statement from Veteran's spouse. In a July 2016 rating decision, the RO denied, for accrued benefits purposes, entitlement to special monthly compensation on either the basis of aid and attendance or housebound status on the ground that the Veteran's need was due to nonservice-connected disabilities. However, given the Board's decision herein, the RO needs to reconsider that determination. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving reasonable doubt, the Veteran's metastatic RCC is related to his presumed exposure to herbicide agents during his active military service in the Republic of Vietnam. 2. Prior to May 26, 2011, the evidence fails to demonstrate that, during the appeal period, the Veteran's residuals of prostate adenocarcinoma, status post prostatectomy, caused renal dysfunction; voiding dysfunction requiring the wearing of absorbent materials; urinary frequency with a daytime voiding interval between two and three hours or more frequently or awakening to void two or more times per night; obstructive voiding; and episodes of urinary tract infections. 3. As of May 26, 2011, the evidence demonstrates the Veteran had urine leakage requiring the use of three urinary pads per day. 4. As of June 7, 2011, the evidence demonstrates the Veteran had significant lower urinary tract symptoms resulting in urinary frequency, urgency and nocturia, and that he required the use of three to five pads per day for protection. 5. The Veteran was not unable to obtain or sustain a substantially gainful occupation solely due to his service-connected prostate adenocarcinoma, status post prostatectomy. 6. In September 2017, prior to a decision in this case, the appellant, via her representative, withdrew the appeal as to the issue of entitlement to a compensable disability rating for service-connected erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for service connection for metastatic RCC are met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. Prior to May 26, 2011, the criteria for a compensable disability rating for service-connected prostate adenocarcinoma, status post prostatectomy, were not met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 3. The criteria for a disability rating for 40 percent disability rating, but no higher, for service-connected prostate adenocarcinoma, status post prostatectomy, are met from May 26, 2011 to June 6, 2011. 38 U.S.C. §§ 1155, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 4. The criteria for a disability rating of 60 percent, but no higher, for service-connected prostate adenocarcinoma, status post prostatectomy, are met as of June 7, 2011. 38 U.S.C. §§ 1155, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 5. The criteria for a TDIU rating solely due to the Veteran's service-connected prostate adenocarcinoma, status post prostatectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017). 6. The appeal for entitlement to an initial compensable disability rating for service-connected erectile dysfunction is dismissed. 38 U.S.C. §§ 511(a), 7104, 7105, 7108 (2012); 38 C.F.R. § 20.101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection of Metastatic RCC In July 2010, the Veteran filed an application for service connection seeking compensation for his prostate cancer on the basis that it was due to exposure to herbicide agents in the Republic of Vietnam. He reported serving two tours in Vietnam aboard the USS Gray from July 1972 to December 1972 and in June 1973 to December 1973. He related that he had liberty in DaNang twice. Although the Veteran did not specifically claim entitlement to service connection for his metastatic RCC, in December 2010, he related that he was about to be "hospitalized again to repair vertebrae that have disintegrated to the point of collapse due to the metastasis of the prostate cancer as well as the chemotherapy I have endured." (Emphasis added.) This statement, taken with the medical records showing that he had metastatic RCC, was clearly interpreted by the RO as a claim for service connection for that condition. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). In addition, VA has recognized a presumption of service connection for certain disease as related to exposure to herbicide agents who served in the Republic of Vietnam (or other specified locations). See 38 C.F.R. §§ 3.307 and 3.309. The Board acknowledges that the RO has conceded that the Veteran had service within the Republic of Vietnam and he is, therefore, presumed to have been exposed to tactical herbicides due to such service. See38 C.F.R. § 3.307(a)(6)(iii). The Secretary of VA has determined, however, that a presumption of service connection as based upon such exposure is not warranted for renal cancer. See Determinations Concerning Illnesses Discussed In National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014). Although this does not preclude service connection on a direct basis, the evidence would clearly have to demonstrate that, in a veteran's specific case, his renal cancer was the result his exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The evidence shows the Veteran was diagnosed to have prostate adenocarcinoma by biopsy in May 2009 and underwent a prostatectomy in July 2009 for which service connection has been established. Subsequently, in mid-September 2009, the Veteran developed intermittent gross hematuria and clot retention and had several episodes of this, as well as was diagnosed and treated for multiple urinary tract infections. Then, at the end of October 2009, the Veteran saw his primary care physician for a rapidly growing scalp lesion. The lesion was biopsied and subsequent pathology revealed a clear cell malignant neoplasm most consistent with metastatic RCC. Subsequent CT scan in November 2009 revealed a lobulated mass in the anterior cortex of the right kidney most likely representing RCC. A day after the CT scan, the Veteran developed the inability to urinate due to hematuria and clot retention and was admitted to the hospital for evaluation and treatment. While there, multiple diagnostic tests were performed that revealed the Veteran had primary RCC with multiple metastasis (pulmonary metastasis on November 9, 2009 abdominal CT; possible right caudate metastasis on November 10, 2009 brain MRI; and multiple pulmonary metastasis and probable muscular and subcutaneous metastasis including a left scapular, left gluteus maximus and proximal posteromedial left thigh on November 10, 2009 PET scan). During this hospitalization, the Veteran underwent a right radical nephrectomy and removal of omental metastasis. In May 2010, the Veteran underwent a left parietal craniotomy with gross total resection of the tumor. In June 2010, the Veteran underwent emobilization and intramedullary nailing of the bilateral femurs to prevent impending renal cell pathologic fracture of the femurs due to lytic lesions therein. In August 2011, a CT scan of the chest showed new diffuse hepatic heterogeneity and at least one very discrete focal lesion in the inferior right liver lobe that were highly suspicious for new hepatic metastatic disease. The Veteran died at the end of September 2011 due to his metastatic RCC. The main contention in this case has been that the Veteran's metastatic cancer and/or metastatic RCC are due to his prostate adenocarcinoma. In support of this contention, multiple medical opinions were submitted. An opinion from the Veteran's treating oncologist dated in September 2011 states that the Veteran had two malignancies - prostate cancer and kidney cancer - and that he had multiple metastases to include of the bone, liver and lymph nodes. This oncologist opined that, because not all the metastatic lesions were biopsied that, it is as likely as not that some of the metastatic lesions were from the prostate cancer as the kidney cancer. In addition, the appellant submitted an opinion letter from the Veteran's treating primary care physician dated in January 2012 in which he stated that the Veteran had "recurrent metastatic prostate cancer in November 2009," and that, during his evaluation of the metastatic prostate cancer, a second malignancy, RCC, was also diagnosed. He noted the opinion by the Veteran's oncologist. He stated that the metastatic skin lesion biopsied with undetermined primary source, and no other metastatic lesions were biopsied. He, therefore, agreed with the oncologist that the metastatic cancer that ultimately killed the Veteran was as likely the result of prostate cancer as not. In August 2012, a VA medical opinion was obtained that speaks directly against these private medical opinions. The VA examiner opined that the Veteran died of Stage IV (metastatic) RCC (S4RCC), and that he never had metastatic prostate cancer. In this examiner's opinion, the Veteran's oncologist and primary care physician opinions were merely hypotheses because neither of them cited any medical records that confirmed metastatic prostate cancer, they only "hypothesized the 'likelihood'" of metastatic prostate cancer. The examiner stated, however, that the prostate cancer records of the Veteran's treating Urologist from September 2010 through August 2011 documented that his prostate cancer was consistently recorded as Stage T2c, which means it was not metastatic. Furthermore, the Veteran's PSA levels in all of these notes remained undetectable providing laboratory confirmation of no metastatic prostate cancer (since metastatic prostate cancer is known to be routinely associated with abnormally elevated PSA levels). Moreover, the oncologist in her own notes characterized the prostate cancer as a history of "localized" (i.e., cured with surgery) and, therefore, not metastatic prostate cancer. The examiner concluded that, in short, the Veteran's own treating urologist and oncologist documented that the Veteran's prostate cancer was removed with prostatectomy with no evidence of active (local reoccurrence or metastasis) prostate disease up through at least August 2011 (only six weeks prior to death). The Board finds this medical opinion to be highly probative, and thus persuasive, as to whether the Veteran's service-connected prostate cancer was the primary source of his metastatic disease as it is clearly based upon the objective clinical data of record and supported by a clear rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board agrees with the VA examiner, and finds other issues with the private medical opinions. The Board finds that the primary care physician's opinion is inconsistent with the contemporaneous treatment records, even his own. The primary care physician's treatment records in November 2009 show that discussions with the pathologist indicated that the malignancy was "mostly likely renal cell, does not appear to be prostate cancer by initial stains." (Emphasis added.) The initial Pathology report based on the biopsy of the skin lesion on the head indicated that the findings were most in keeping with an RCC as the coexpression of AE1/AE3 and Vimentin is nearly specific for this entity. It was further noted that it would be unusual for prostate adenocarcinoma to metastasize to the skin, and the histologic appearance and immunohistochemical profile of this lesion was not typical of one of prostatic origin. However, in light of the Veteran's history of prostate cancer, further testing was conducted that showed "no immunoreactivity with the neoplastic cells" and, thus, prostate cancer was excluded as a possible primary lesion. In addition, testing of the excised lesion of the head resulted in the conclusion that this was a focal residual clear cell malignant neoplasm, most consistent with metastatic renal clear cell carcinoma. Consequently, the primary care physician's statement that the "skin lesion biopsied with undetermined source" does not appear to be consistent with the Pathology reports of record or his own reports. Moreover, the Veteran's November 2009 hospitalization records when he had his right radical nephrectomy clearly demonstrate that the treating physicians at that time believed the Veteran's RCC was the likely primary malignancy, not his prostate cancer. Even the Veteran's treating Urologist who treated him for his prostate cancer assessed him to have "right renal cell carcinoma with likely metastases." (Emphasis added.) Although the Veteran's prostate cancer was listed, the urologist stated that "there is no evidence of disease" clearly expressing his opinion this was not a contributing factor at this time. The primary care physician's January 2012 medical opinion, however, states the Veteran was treated for "recurrent metastatic prostate cancer" in November 2009. That statement is clearly not a statement of fact supported by the November 2009 hospitalization records. Rather, that statement is an expression of the physician's conclusion. As for the Oncologist's opinion, as expressed by the VA examiner, the Board finds it is merely speculative and unsupported by clinical evidence. Essentially her opinion is based on the lack of evidence rather than the presence of evidence. Thus, there is no medical certainty behind her statement as there is no clinical support for it. The Board also acknowledges that the VA examiner who conducted the Veteran's initial VA examination in November 2010 diagnosed the Veteran to have high grade prostate cancer, removal via robotic prostatectomy, and multiple prostatic carcinoma metastases to the brain, bones, lung, kidney and stomach. However, the VA examiner did not have the benefit of reviewing the Veteran's claims file or any of his medical records and, therefore, his diagnosis was based solely upon the Veteran's report that he had metastases from his prostate cancer. The RO attempted to correct this error by sending the VA examiner the Veteran's claims file; however, he was no longer available. In April 2011, a different VA examiner reviewed the Veteran's claims file, including the November 2010 VA examination report and the medical records obtained regarding the Veteran's treatment, and this new VA examiner opined that the Veteran's appropriate diagnoses should be prostate adenocarcinoma, status post da Vinci robotic prostatectomy, no evidence of metastasis; and renal clear cell carcinoma with multiple metastasis, including lung, omentum, muscular, subcutaneous metastases (left scapular, left gluteus maximus, and proximal posteromedial left thigh), and brain metastases, status post right radical nephrectomy. Consequently, a review of the objective medical evidence did not support the Veteran's history and, therefore, the more probative and persuasive evidence of which diagnosis regarding the Veteran's RCC is the April 2011 addendum report. The Board finds, therefore, that the November 2010 VA examination is inadequate for rating purposes as it is based upon an inaccurate factual premise as the Veteran's reported history of having been treated for metastatic prostate cancer was not supported by the objective medical evidence and that was the premise upon which all of the VA examiner's opinions were based. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (The Board may disregard a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or in contradiction with the facts of record.). Thus, the Board assigns no probative value to this evidence. Based upon this and the other evidence of record supporting that the Veteran's metastatic disease was not related to his prostate cancer, the Board finds that service connection for the Veteran's metastatic RCC, or any part of his metastatic disease, is not warranted on a secondary basis as related to his service-connected prostate adenocarcinoma, status post prostatectomy. However, the contention has also been raised that the Veteran's metastatic RCC is due to his exposure to herbicide agents during his active duty service in the Republic of Vietnam. In support of this contention, a private medical opinion dated in July 2017 was recently submitted favorable to the claim. After a thorough review of the medical records, medical opinions and layperson statements provided to him, along with pertinent medical literature on the subject, this private physician opined that the metastatic RCC that resulted in the Veteran's death was more likely as not caused by or aggravated by his in-service exposure to Agent Orange and its toxic dioxin contaminants (TCDD). The private physician stated that this opinion takes into account the lack of other significant known risk factors for the development of RCC and the recent evidence suggesting TCDD as a trigger for the development of RCC (citing to Ishida, M., Mikimi, S., Shinojima, T. et al., Activation of aryl hydrocarbon receptor promotes invasion of clear cell renal cell carcinoma and is associated with poor prognosis and cigarette smoke. Int J Cancer 2015; 137: 299-310). Hence, even though the NAS has not found sufficient evidence upon which the Secretary can establish presumptive service connection for renal cancer, based upon this very cogent and well-written medical opinion that is clearly supported by the evidence of record, the Board resolves reasonable doubt in the present case and finds that the Veteran's metastatic RCC is related to his presumed exposure to herbicide agents during his active military service. Consequently, the Board finds that direct service connection for metastatic RCC is warranted and, to that extent, the appeal is granted. II. Compensable Rating for Prostate Adenocarcinoma Service connection for prostate adenocarcinoma, status post prostatectomy, has been established effective July 8, 2010, the date the Veteran filed his claim for service connection, and has been evaluated as zero percent disabling based upon its residuals. The Veteran has disagreed with the noncompensable rating assigned. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155 (2012). Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. § 4.1 and 4.2 (2017). Moreover, as the Veteran's claim of entitlement to a higher evaluation is an appeal from the initial assignment of a disability rating, the claim requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. The Veteran's prostate adenocarcinoma, status post prostatectomy, is currently evaluated as zero percent disabling under Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. The Note to Diagnostic Code 7528 states that, following 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. If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In this case, the Veteran underwent surgery for prostate adenocarcinoma in July 2009 with no chemotherapy thereafter. His claim for service connection was submitted in July 2010, and service connection was awarded effective as of the filing date of the claim. Thus a 100 percent disability rating is not warranted for any period of time, as the Veteran's claim was filed more than six months after the cessation of therapy for his prostate adenocarcinoma. Subsequent treatment records show the Veteran's prostate specific antibody (PSA) count reduced to less than 0.1 nanograms indicating there was no local reoccurrence. Furthermore, as discussed above (which discussion is incorporated herein), the evidence is against finding that the Veteran's prostate cancer metastasized. Thus the Veteran's post-operative residuals should be rated under the criteria for either renal or voiding dysfunction. A review of the records shows no evidence or allegation of renal dysfunction, only voiding dysfunction. Therefore, the Veteran's post-operative urinary residuals will be rated using the criteria for voiding dysfunctions. The particular voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a . The Veteran in this appeal describes urinary incontinence and frequency. Thus both the criteria for urine leakage and frequency will be considered in rating the Veteran's disability. When rating for urine leakage, a 20 percent rating is warranted when the disability requires the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating is warranted when the disability requires the wearing of absorbent materials that must be changed two to four times per day. A maximum rating of 60 percent is warranted when the disability requires the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. When rating on the basis of urinary frequency, a 20 percent rating is warranted when the daytime voiding interval is between one and two hours or there is awakening to void three to four times per night. A maximum rating of 40 percent is warranted when the daytime voiding interval less than one hour or there is awakening to void five or more times per night. Resolving doubt in the Veteran's favor, the Board finds that the evidence supports a 40 percent evaluation for the Veteran's urinary residuals of prostate adenocarcinoma, status post prostatectomy, under the criteria for urine leakage effective May 26, 2011, and a 60 percent evaluation effective June 7, 2011. 38 C.F.R. § 4.3. Treatment notes from the Veteran's private urologist record that, for the first time on follow-up visit on May 26, 2011, the Veteran required the use of three urinary pads per day, although it does not show complaints of such symptoms as urinary frequency, hesitancy, incontinence, retention or urgency. Prior to this date, the urologist's treatment notes indicated the Veteran did not use urinary pads. Furthermore, there was no notation in any other treating providers' notes that the Veteran had genitourinary complaints or required the use of urinary pads. There was also no notation that the Veteran had symptoms of urinary frequency or urgency or that he had nocturia (having to go at night) Subsequently, the Veteran's urologist wrote a letter on his behalf dated June 7, 2011 in which he stated that the Veteran suffered from significant lower urinary tract symptoms resulting in urinary frequency, urgency and nocturia, and that he had incontinence requiring three to five pads per day for protection. Based upon this letter, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 60 percent disability rating is warranted for urine leakage requiring more than four pads per day. Unfortunately, however, the Board finds that a compensable disability rating prior to May 26, 2011 is not warranted. There is no evidence identifying an ascertainable date of increase preceding the May 26, 2011 record. The Board acknowledges the written and oral testimony indicating that the Veteran had been having urinary problems since July 2009, but the objective medical evidence and the Veteran's own testimony at the September 2011 RO hearing are inconsistent with such report. The Veteran testified at the hearing that, at the time of his initial VA examination in November 2010, he was having "a slight problem with trying to hold it," but he did not report that he was using absorbent materials at the time of the examination. Moreover, there is nothing in his private urologist's treatment records to show when he started using absorbent materials except for the May 26, 2011 treatment note, or that he was having urinary symptoms such as frequency, urgency or nocturia. The Decision Review Officer advised him and the appellant that, if there are errors in these records as to this, they would need to talk with the physician about correcting them, but no corrected records have been submitted. Furthermore, although they also testified that he had problems with nocturia with getting up from five to eight times a night, again there is nothing in the treatment records to show when his nocturia began and they did not provide any specific time period. Notably, the Veteran denied all of these symptoms at his November 2010 VA examination despite being specifically asked about them. The appellant's explanation as to why these symptoms may not be notated in the treatment records does not explain why the Veteran denied having them on direct questioning at the November 2010 VA examination. The effective date of an award of increased compensation can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). In the present case, it is factually ascertainable that the residuals of the Veteran's service-connected prostate adenocarcinoma, status post prostatectomy, first required the use of three urinary pads per day on May 26, 2011, and the use of more than four urinary pads per day on June 7, 2011. It was not factually ascertainable until after those dates that the Veteran's nocturia caused him to get up five to eight times per night and, therefore, although such does meet the criteria for a 40 percent disability rating for urinary frequency it does not permit an earlier effective date. Consequently, the Board finds that a 40 percent disability rating effective May 26, 2011, and a 60 percent disability rating June 7, 2011, is warranted. A 60 percent disability rating is the highest evaluation provided by the rating schedule unless there is renal dysfunction, which is not shown by the evidence in this case. Consequently, a higher disability rating is not warranted. The Board finds that it must also address whether a TDIU should be assigned solely due to the Veteran's service-connected prostate adenocarcinoma, status post prostatectomy, as such claim has been raised. Initially, the Board notes that, until June 7, 2011, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU in that his prostate cancer was his only service-connected disability and it was not rated as 60 percent until that date pursuant to this decision. See 38 C.F.R. § 4.16(a). However, even so, the Board finds that the evidence fails to demonstrate that the Veteran's prostate cancer alone was the cause of his unemployability. It is clear from the record that the Veteran was self-employed as a restaurant owner, and that, at some point, he was advised by his physicians to abstain from working. However, this was clearly due to treatment for his metastatic RCC, not his prostate cancer. Based on the evidence in the record, once the Veteran had his prostatectomy in July 2009, his prostate cancer appears to have been of little to no concern and, other than some urinary symptoms that appear to have worsened as his metastatic RCC worsened, his prostate cancer and its residuals had little effect on his health and overall functioning according to his urologist's notes. Rather, it appears that it was the Veteran's metastatic RCC and the treatment for it that took its toll on his health and his ability to continue working. The Board acknowledges that the July 2017 private physician's opinion that it is medically impossible to differentiate exactly which cancers caused or contributed to the Veteran's total disability condition. However, the Board finds this opinion to lack probative value as it is relies upon statements made by the November 2010 VA examiner, whose report has already been found to be inadequate due to being based upon the Veteran's factually inaccurate self-history. Rather the Board finds more probative the August 2012 medical opinion that states that the Veteran's prostate cancer had never metastasized, thereby finding that the Veteran's metastatic disease was due to RCC and not prostate cancer. When reading the evidence in light of this opinion, it is clear that the symptoms that caused the Veteran's inability to continue working were not due to his prostate cancer, but his metastatic RCC and treatment for it. For those reasons, the Board finds that the Veteran's prostate cancer did not render the Veteran unable to obtain and sustain a substantially gainful occupation and, therefore, entitlement to a TDIU as solely due to the Veteran's service-connected prostate adenocarcinoma, status post prostatectomy is not warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's claim is, therefore, granted to that extent as specified above. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Compensable Rating for Erectile Dysfunction The Veteran was service-connected for erectile dysfunction evaluated as zero percent disabling effective July 8, 2010, in the April 2011 rating decision on appeal. The Veteran disagreed with the initial noncompensable disability rating assigned, and an appeal was perfected in October 2012 by the appellant after the Veteran's death. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, through her authorized representative, has withdrawn the appeal of the claim for a compensable disability rating for service-connected erectile dysfunction by correspondence received in September 2017. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. ORDER Entitlement to service connection for metastatic RCC is granted. Entitlement to an initial disability rating of 40 percent for service-connected prostate adenocarcinoma, status post prostatectomy, is granted effective from May 26, 2011 to June 6, 2011, subject to controlling regulations governing the payment of monetary benefits. Entitlement to an initial disability rating of 60 percent for service-connected prostate adenocarcinoma, status post prostatectomy, is granted effective June 7, 2011, subject to controlling regulations governing the payment of monetary benefits. The appeal for entitlement to an initial compensable disability rating for service-connected erectile dysfunction is dismissed. REMAND The Board finds that, given the grant of service connection for metastatic RCC, it must remand the claim for entitlement to a TDIU as it is inextricably intertwined with the rating of this now service-connected disability. Once the RO has had an opportunity to assign an initial disability rating for the Veteran's now service-connected metastatic RCC, it can address whether a TDIU is warranted based upon all the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following action: After effectuating the Board's grant of service connection for metastatic RCC and assigning an initial disability rating, readjudicate the issue of entitlement to a TDIU considering the effect of all of the Veteran's now service-connected disabilities. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the appellant and her representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs