Citation Nr: 18143450 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 18-41 971 DATE: October 19, 2018 ORDER Entitlement to rating of 60 percent and no more for prostate cancer, status post radiation treatment is granted. FINDING OF FACT The Veteran’s residuals of prostate cancer are shown to be productive of continual urine leakage requiring the wearing of absorbent materials which must be changed more than four times per day. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a rating of 60 percent for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.16, 4.115a, 4.115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1950 to March 1973. Entitlement to a rating in excess of 40 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). In determining the propriety of an initial disability rating, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). The Veteran has been assigned a 40 percent rating for voiding dysfunction under DC 7528. Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is rated under three subcategories of urine leakage, urinary frequency, or obstructive voiding. Under the subcategory of voiding dysfunction, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than two times per day merits a 20 percent disability rating. When the absorbent materials must be changed two to four times per day, a 40 percent rating is warranted. When the absorbent materials must be changed more than four times per day or an appliance is required, a 60 percent rating is warranted. A 60 percent rating is the highest schedular rating for voiding dysfunction. 38 C.F.R. § 4.115(a). Analysis The Veteran contends that his residuals, prostate cancer is more severe than the 40 percent rating depicts. In January 2017, the Veteran was afforded a VA examination to determine the severity of the residuals, prostate cancer. The Veteran’s wife reported frequent nighttime voiding four to six times. Additionally, if the Veteran was on a trip, he had to stop several times to use the restroom. The Veteran reported slow urinary stream, and he wore diapers. The examiner diagnosed the Veteran with prostate cancer s/p external beam radiation and Lupron therapy with residual of voiding dysfunction and erectile dysfunction. The Veteran’s cancer was in remission. However, he experienced voiding dysfunction which caused urine leakage. He voided two to three hours during the day and required absorbent materials which must be changed two to four times per day. The voiding dysfunction caused nighttime awakening to void five or more times. However, the Veteran did not require an appliance for his voiding dysfunction. He experienced hesitancy and slow, weak, and decreased stream. There were no other obstructive symptoms. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections, retrograde ejaculation, or residuals or complications due to his prostate condition. But, he experienced erectile dysfunction. There were no other pertinent physical findings, complications, conditions, signs, symptoms, and scars. The Veteran’s prostate cancer did not result in other residual conditions and/or complications, to include renal dysfunction. Diagnostic testing revealed PSA of 0.548 ng/mL. The Veteran’s disability did not impact his ability to work. In December 2015, the Veteran was seen at the Jacksonville VA clinic. His treatment records note that the Veteran wore one extra absorbent diaper five times per day. The Board notes that during his January 2017 VA exam, the examiner noted that the Veteran wore absorbent material which needed to be changed two to four times per day. However, his treatment records noted that the Veteran wore one extra absorbent diaper five times per day. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s overall disability picture more nearly approximates that of continual urine leakage and/or urinary incontinence requiring the wearing of absorbent materials which must be changed more than four times per day. The Board has considered whether the Veteran is entitled to an increased rating based on renal dysfunction. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In April 2016, the Veteran was diagnosed with chronic kidney disease (CKD) stage three without proteinuria. However, the examiner stated that the condition was likely due to hypertensive nephrosclerosis and age. The Board notes that the Veteran service connection for hypertension. Also, the VA examination noted that the Veteran’s prostate residuals have not manifested with symptomatology associated with renal dysfunction or any other residual conditions and/or complications. Additionally, the Board notes that the Veteran has already been denied service connected for nephrosclerosis. Therefore, the Board finds that an increased rating is not warranted on this basis. Furthermore, the Board concludes that no other diagnostic codes are applicable. There is no evidence that the Veteran’s symptomatology or overall disability picture more nearly approximate a circumstance involving multiple urethroperineal fistulae (38 C.F.R. § 4.115b, DC 7519), postoperative, suprapubic cystotomy (38 C.F.R. § 4.115b, DC 7516), or kidney transplant surgery (38 C.F.R. § 4.115b, DC 7531). The Board notes that the January 2017 VA examiner diagnosed the Veteran with erectile dysfunction and attributable it to prostate cancer. In an April 2009 rating decision, AOJ granted service connection for erectile dysfunction and assigned a noncompensable rating. (Continued on the next page)   Therefore, the Board finds that the competent evidence of record more nearly approximates the criteria for a higher disability rating of 60 percent for voiding dysfunction under 38 C.F.R. § 4.115b, DC 7528. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel