Citation Nr: 1806130 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-07 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent from June 1, 2010 for disability due to residuals of prostate cancer, status post prostatectomy. 2. Entitlement to a separate compensation for erectile dysfunction as secondary to disability due to residuals of prostate cancer, status post prostatectomy, to include special monthly compensation (SMC) for loss of use of a creative organ. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1978 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs, Regional Office (RO), located in Denver, Colorado, which reduced the assigned evaluation from 100 to 0 percent, effective from June 1, 2010. The Veteran appealed. His claim was subsequently treated as both a reduction rating and an increased rating by VA in the statement of the case and the Veteran had consistently argued for a higher evaluation. The jurisdiction of the claim has since been transferred to the RO in Albuquerque, New Mexico. In a January 2012 rating decision, the RO increased the assigned evaluation to 10 percent, effective from June 1, 2010, the date of the original reduction. As this does not reflect a full award of the benefit sought, the issue remains on appeal. In a July 2016 decision, the Board found that the reduction of the rating from 100 percent, effective June 1, 2010, for residuals of prostate cancer was proper, and remanded the matter of increased rating for additional development. The Board notes that throughout his appeal, the Veteran has emphasized his erectile dysfunction as a residual of his prostate cancer disability. His claim for service connection for erectile dysfunction was denied in an October 2010 rating decision, and within a year of that decision, the Veteran submitted additional evidence in support of his claim, which affected the finality of the 2010 rating decision. Since the 2010 rating decision is not final, and given the Veteran's assertions, the claim falls within the scope of the current appeal for increased rating for prostate cancer residuals. FINDINGS OF FACT 1. Throughout pendency of the period, the Veteran's residual prostate cancer disability has been manifested by no more than symptoms of mild stress continence without the use of an absorbent pad, weak urinary stream, and urinary frequency with daytime voiding every three to four hours and nocturia twice a night. 2. Throughout pendency of the period, the Veteran's residual of prostate cancer disability has resulted in erectile dysfunction without evidence of penile deformity. CONCLUSION OF LAWS 1. The criteria for an evaluation in excess of 10 percent since June 1, 2010 for residuals of prostate cancer have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.7, 4.10, 4.20, 4.31, 4.115a, 4.115b, Diagnostic Codes 7522, 7528 (2017). 2. Entitlement to special monthly compensation at the rate provided by 38 U.S.C.A. § 1114 (k) (2012) for loss of use of a creative organ is established. 38 C.F.R. § 3.350 (a)(1)(2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist VA's duty to notify was satisfied after the RO's initial decision by the way of a January 2012 statement of the case, and his claim was most recently readjudicated in a December 2016 supplemental statement of the case. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. Pursuant to the Board's July 2016 remand directives, the claims folder was updated with the Veteran's VA treatment records and he was afforded a VA examination in October 2016. Review of the record reflects that there has been compliance with the Board's remand directives and the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). 2. Increased Rating Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1 (2017). See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, a March 2010 rating decision reduced the Veteran's assigned rating for residuals of prostate cancer, status post prostatectomy, from 100 to 0 percent disabling, effective from June 1, 2010 based on the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2017), for malignant neoplasms of the genitourinary system. A January 2012 rating decision increased the assigned rating to 10 percent disabling with the same retroactive effective date under Diagnostic Code 7528. Prostate cancer is evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, at which time the Veteran is to be provided a VA examination. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105 (e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Veteran underwent a prostatectomy for treatment of prostate cancer in December 2005, just prior to his separation from service, and he was awarded service-connection effective from the date following his separation from service. As noted above, this matter was rose from a VA initiative to re-evaluate his disability. VA and private medical records demonstrate no local reoccurrence or metastasis of the Veteran's prostate cancer, and the Veteran has not contended otherwise. Accordingly, the Veteran is not entitled to a 100 percent disability rating at any time during the appeal period. Instead, for the entire rating period, the Veteran's disability is properly rated based on residual symptoms, either as a voiding dysfunction or a renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. Under obstructed voiding conditions, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for 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 demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id. Renal dysfunction is also evaluated under 38 C.F.R. § 4.115a. A 100 percent disability rating is warranted for regular dialysis or such dysfunction that precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, a BUN [blood urea nitrogen] level more than 80 mg% [milligrams of urea nitrogen per 100 milliliters of blood]; or a creatine level more than 8mg% [milligrams of serum creatine per 100 milliliters of blood]; or, markedly decreased function of the kidney or other organ systems, especially cardiovascular. An 80 percent disability rating requires persistent edema and albuminuria with a BUN level of 40mg% to 80mg%; or a creatine level of 4mg% to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent disability rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. A 30 percent disability rating is warranted for 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 Diagnostic Code 7101. A non-compensable disability rating is warranted for albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. Id. In his April 2010 notice of disagreement, the Veteran asserted that his disability was more severe than reflected by the current assigned evaluation. He reported that he has experienced incontinence, leakage after urination, and nighttime frequency of 2 to 3 times a night as a result of the treatment for prostate cancer. The Veteran also submitted a December 2012 statement from his treating military physician, in which he identified erectile dysfunction and mild stress incontinence as the residuals of the Veteran's prostate cancer. The Veteran was afforded a VA examination in May 2011 to evaluation the residuals of his disability due to prostate cancer. The examination report shows that the Veteran reported symptoms of erectile dysfunction, urinary leakage and urinary frequency as residuals of his prostate cancer. The VA examiner noted that the Veteran' had urine leakage manifested by stress incontinence. The VA examiner also noted the Veteran had increased voiding frequency with daytime voiding of two to three hour intervals and nocturia twice a night. He reported symptoms of weak streams, but he denied any other symptoms of obstructed voiding such as hesitancy, decreased force of stream, or recurrent urinary tract infections. The VA examiner marked that that the Veteran had erectile dysfunction as residual of his prostatectomy. An examination of the Veteran's penis was normal with no deformity. The recorded laboratory results reflect that the Veteran's urine tested negative for the presence of protein, glucose, and occult blood. Following examination, the VA examiner listed erectile dysfunction and mild stress incontinence as the extent of the Veteran's residual symptoms following prostatectomy. Subsequent VA treatment records show that pharmaceutical treatment for erectile dysfunction was not successful. These records show no complaints of incontinence, difficulty or changes in urination, or reflect signs or symptoms attributed to a urinary tract or kidney infection. See May 2013 and August 2016 VA treatment records. The report of an October 2016 VA examination shows that the Veteran's prostate cancer was currently in remission and he had not had a reoccurrence since the 2005 prostatectomy. The Veteran reported symptoms of voiding dysfunction, including symptoms of leakage, increased urinary frequency, and obstructed voiding. The VA examiner noted that although the Veteran complained of urinary leakage, he denied use of an absorbent material pad. The Veteran reported urinary frequency with daytime voiding every three to four hours and nocturia one to two times a night. He complained of slow stream, but not markedly slow stream. No other signs or symptoms of obstruction were noted, and there was no sign or symptom of a urinary tract or kidney infection. There was no evidence of renal dysfunction was noted. The VA examiner noted that the Veteran had erectile dysfunction as a residual of the prostatectomy and treatment has been unsuccessful. Base on a review of the foregoing evidence, the Board finds that an evaluation in excess of 10 percent for residuals of prostate cancer, status-post prostatectomy, is not warranted at any time during the appeal period. As discussed above, the December 2005 prostatectomy was the last therapeutic treatment for the Veteran's prostate cancer. As the cessation of therapeutic treatment occurred more than six months prior to the Veteran's claim of service connection, the Veteran is not entitled to the 100 percent disability rating as provided in the Rating Schedule. Instead, the Veteran's prostate cancer disability is to be rated on the basis of residual symptoms, either as a voiding dysfunction or a renal dysfunction, whichever is predominant. The competent medical evidence does not demonstrate that the Veteran experiences residual symptoms of renal dysfunction, and that Veteran's symptoms of a voiding dysfunction are the predominant residual symptom of his prostate cancer. However, the evidence of record does not show that the Veteran's symptoms of voiding dysfunction support an evaluation in excess of the currently assigned 10 percent rating. See 38 C.F.R. § 4.115a. Collectively, the evidence during the pendency of the appeal, includes the Veteran's statements and medical history in which he describes symptoms of urinary incontinence (leakage), increased urinary frequency, and obstructed voiding (weak urinary stream). His treating health care providers and VA examiners have characterized his urinary incontinence as mild in nature and the Veteran has denied the use of an aberrant material pad. He has reported urinary frequency of daytime intervals between two and four hours, and nocturia no more than twice a night. The Veteran's reported daytime intervals and nocturia are consistent with the criteria associated with the 10 percent rating for urinary frequency. See 38 C.F.R. § 4.115a. A higher evaluation of 20 percent is not warranted under this evaluation unless there is evidence of daytime voiding interval of one to two hours and awakening to void three to four times per night. As the evidence does not indicate that the Veteran voids this frequently, and he has never asserted that he does, an evaluation of 20 percent for urinary frequency is not warranted. See 38 C.F.R. § 4.115a. In addition, a higher rating cannot be assigned under the rating criteria for urine leakage or voiding obstruction. For the assignment of a 20 percent rating for urine leakage or voiding obstruction, a veteran must require the wearing of absorbent materials which must be changed less than twice daily, or have urinary retention that requires intermittent or continuous catheterization. Although the Veteran has mild stress incontinence, he has denied the use of absorbent material pads. The Veteran reported symptoms of slow or weak stream, but his symptoms did not require requiring intermittent or continuous catheterization. A higher rating is not warranted based on urinary leakage or voiding obstruction. See 38 C.F.R. § 4.115a. The Veteran is competent to report observable symptoms, such as pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, the competent medical evidence, which offers detailed specific specialized determinations relating to the rating criteria, is the most probative evidence with regard to evaluating the pertinent symptoms for the residual prostate cancer disability. The lay testimony has been considered together with the probative medical evidence in clinically evaluating the severity of the Veteran's current symptomatology. For these reasons, the Board finds the preponderance of the evidence weighs against entitlement to an evaluation in excess of 10 percent for a residual prostate cancer disability at any point during the appeal period. In consideration of other applicable disability ratings, the Board has considered the Veteran's consistent and continual reports of erectile dysfunction as a residual symptom following radical prostatectomy. Moreover, the competent medical evidence of record has attributed the Veteran's erectile dysfunction to his residuals of prostate cancer. See December 2010 medical statement, May 2011 VA examination report, and October 2016 VA examination report. The Board has considered entitlement to a separate disability rating for erectile dysfunction, which is rated by analogy to "penis, deformity, with loss of erectile power" under 38 C.F.R. § 4.115b, Diagnostic Code 7522. This Diagnostic Code provides for a single 20 percent rating for a deformity of the penis with loss of erectile power. This is the sole disability rating provided under this diagnostic code provision. Here, there is no evidence that the Veteran was found to have a deformity, but he has been diagnosed with erectile dysfunction as residual of his prostate cancer disability. Both VA examiners specifically indicated that the Veteran reported no penile deformity present. Accordingly, the Veteran does not meet the criteria for a 20 percent disability rating under Diagnostic Code 7522. 38 C.F.R. § 4.115b. As such, the Board finds that he is entitled to a noncompensable rating for erectile dysfunction under Diagnostic Code 7522, and special monthly compensation for loss of use of a creative organ at the rate provided by 38 U.S.C. § 1114 (k). See 38 C.F.R. § 3.350 (a)(1) and § 4.115b (Note 1). In sum, the Board finds the preponderance of the evidence weighs against entitlement to an evaluation in excess of 10 percent for a residual prostate cancer disability at any point during the appeal period. However, the record does demonstrate that the Veteran has erectile dysfunction as residual of prostate cancer, and compensation based on special monthly compensation for loss of use of a creative organ at the rate provided by 38 U.S.C. § 1114 (k) is warranted. To the extent that any additional compensation is considered, the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 10 percent from June 1, 2010 for disability due to residuals of prostate cancer, status post prostatectomy is denied. Special monthly compensation pursuant to 38 U.S.C. § 1114 (k) for loss of a creative organ is granted, subject to the law and regulations governing the payment of VA monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs