Citation Nr: 18147938 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-36 175 DATE: November 6, 2018 ORDER Entitlement to an initial rating of 40 percent, but no greater, for residuals of prostate cancer, status post prostatectomy is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his symptoms related to his service-connected residuals of prostate cancer, status post prostatectomy, most nearly approximated voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. CONCLUSION OF LAW The criteria for entitlement to a rating of 40 percent, but no greater, for residuals of prostate cancer, status post prostatectomy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the Veteran’s July 2016 VA Form 9 indicated that he wished to appeal the sole issue of a “rating of 0 [percent] for residuals of prostate cancer,” and an accompanying statement in support of claim also provided argument in support of a rating of at least 20 percent for the disability. The Board further notes that the Veteran previously filed a notice of disagreement with the preceding July 2014 rating decision regarding both the issues of entitlement to an effective date prior to April 10, 2013 for service connection of prostate cancer with a 100 percent evaluation and entitlement to a compensable rating for residuals of prostate cancer, status post prostatectomy. However, the AOJ subsequently adjudicated the issues in two different documents, with the issue of entitlement to an effective date prior to April 10, 2013 for service connection of prostate cancer with a 100 percent evaluation being denied in a July 8, 2016 statement of the case and entitlement to an increased 20 percent rating for residuals of prostate cancer, status post prostatectomy, being granted in a July 8, 2016 rating decision. The Board finds that the July 8, 2016 rating decision concerning entitlement to an increased rating for residuals of prostate cancer, status post prostatectomy, is part of the July 8, 2016 statement of the case, as it did not represent a full grant of benefits sought on appeal, and that the Veteran properly appealed the case in his VA Form 9. While the VA Form 8 listed “increased rating for prostatectomy; temp 100 [percent]” as the issue being certified for appeal, there is no indication that the Veteran intended to appeal the decision contained in the July 8, 2016 statement of the case denying entitlement to an effective date prior to April 10, 2013 for service connection of prostate cancer with a 100 percent evaluation. Therefore, that issue is not currently before the Board. The Board also notes that the Veteran indicated in a July 12, 2016 statement that it was his belief that the AOJ did not consider all relevant evidence of record. Specifically, the Veteran stated that it appeared the AOJ failed to consider a phone discussion with a nurse practitioner from the Marion VAMC, which was conducted in lieu of a VA examination a “few weeks prior to the issuance of the statement of the case,” because the evidence was not listed on the statement of the case. As noted above, the issue of entitlement to an increased rating for residuals of prostate cancer, status post prostatectomy, was addressed separately from the document entitled statement of the case in a July 8, 2016 rating decision. In that decision, the AOJ lists in the evidence considered a June 6, 2016 VA examination report completed by a nurse practitioner at the Northern Indiana VAMC, which notes that it was not an in-person examination. The Board notes that the Marion VAMC is part of the Northern India VAMC system. Therefore, the Board finds that the AOJ considered the evidence indicated by the Veteran in the July 12, 2016 statement and accordingly all relevant evidence of record was considered by the AOJ in the July 8, 2016 rating decision/statement of the case. Thus, a remand for the issuance of a supplemental statement of the case is not necessary and the Board will adjudicate the issue herein. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer, status post prostatectomy The Veteran contends that he is entitled to a rating in excess of 20 percent for the residuals of his prostate cancer, as his symptoms more nearly approximate the criteria for a higher rating. The Board notes that the Veteran was assigned a temporary 100 percent rating for the applicable period of the six months following his prostatectomy, and accordingly the instant increased rating claim applies to the period since September 1, 2013. The Board finds that entitlement to a 40 percent rating, but no greater, is warranted throughout the period on appeal based upon the severity of the Veteran’s symptoms. According to a review of the record, the Veteran was diagnosed with prostate cancer in January 2013. The Veteran underwent radical prostatectomy surgery on February 5, 2013. The evidence shows that the Veteran received no chemotherapy or other therapeutic procedures for prostate cancer after the prostatectomy, and a June 2016 VA examination revealed his cancer was in remission. Diagnostic Code 7528 provides that if there has been no local reoccurrence or metastasis, then the Veteran’s residuals are rated under the criteria for voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The record does not reflect that the Veteran experiences renal dysfunction in association with his residuals of prostate cancer. In relevant part, 38 C.F.R. § 4.115b states that voiding dysfunction is based on urine leakage and provides a 20 percent rating when the disability requires that absorbent material must be changed less than two times per day; a 40 percent rating when the disability requires that absorbent material must be changed two to four times a day; and a maximum 60 percent rating when the disability requires the use of an appliance or the wearing of absorbent material which must be changed more than four times per day. Id. Private treatment records beginning in July 2013, with follow-up visits approximately every six months through August 2015, did not reflect any local recurrence or metastasis of the Veteran’s prostate cancer, but did indicate that he experienced urinary incontinence. February 2015 and August 2015 records noted that the condition required him to wear absorbent materials and change them one to two times per day. The Veteran also noted in his March 2015 notice of disagreement that he was required to wear absorbent materials and changed them one to two times daily. In the June 2016 VA examination report, the examiner noted that the Veteran’s prostate cancer was in remission. The examiner noted that he had urinary incontinence and needed to wear absorbent materials, which he changed twice daily. However, without explanation of the apparent discrepancy, the examiner indicated that the severity of the Veteran’s voiding dysfunction required absorbent material which must be changed less than two times per day. The examiner noted that the Veteran’s voiding dysfunction did not require the use of an appliance and his condition did not result in any renal dysfunction. The examiner further noted that his condition caused nighttime awakening to void two times per night, but it did not did not cause signs or symptoms of obstructed voiding. The examiner indicated that the Veteran did have a history of recurrent symptomatic urinary tract or kidney infections, or other residual conditions or complications due to prostate cancer or treatment for prostate cancer during the examination. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the medical evidence of record supports entitlement to a 40 percent rating, but no greater. The Veteran reported that his condition required him to wear absorbent materials due to urinary incontinence, and that he had to change them roughly twice per day. However, the record does not indicate through lay or medical evidence that a higher rating is warranted. The record reflects that the Veteran did not experience any local reoccurrence or metastasis of his prostate cancer, that his voiding disfunction does not require the use of an appliance, and that he does not experience renal dysfunction in association with his disability. The Board acknowledges that the Veteran was not afforded a VA examination at the expiration of the six-month period following his prostatectomy procedure as directed by Diagnostic Code 7528, and as noted by the Veteran in his March 2015 notice of disagreement. However, VA was not aware of the procedure until it received copies of the relevant medical records in May 2013, and the Veteran was not granted service connection for the disability until July 2014. Accordingly, at the time entitlement to benefits was granted, the six-month period following the Veteran’s surgery had passed. Additionally, the record does not indicate that the Veteran experienced symptoms as of September 1, 2013 which would entitle him to the continuation of a 100 percent rating after that date under Diagnostic Code 7528 (i.e., local reoccurrence or metastasis of his prostate cancer) or otherwise under 38 C.F.R § 4.30. Furthermore, the Veteran did not assert that he experienced symptoms which would entitle him to continuation of a 100 percent rating past September 1, 2013 under either provision. Therefore, the Board rated the Veteran’s residuals of prostate cancer during the period since September 1, 2013 in accordance with Diagnostic Code 7528, and relied on the available evidence of record to analyze the severity of his symptoms during the relevant period. Accordingly, the Board finds that throughout the period since September 1, 2013, the preponderance of the evidence indicates that the residuals related to Veteran’s   prostate cancer, status post prostatectomy, most nearly approximated the need to wear absorbent materials, which he changed twice daily. Thus, a 40 percent rating, but no greater, is warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel