Citation Nr: 18153553 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-46 334 DATE: November 28, 2018 ORDER Entitlement to an increased disability rating in excess of 60 percent for prostate cancer, status-post prostatectomy with voiding dysfunction and urinary incontinence, is denied. REMANDED Entitlement to an increased disability rating for scar residuals, shell fragment wounds of the left leg, right abdomen, and right low back and flank, is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s voiding dysfunction has required the use of absorbent material, which must be changed more than four times per day. 2. During the period on appeal, renal dysfunction has not been demonstrated. 3. During the period on appeal, there is no evidence of active malignancy or antineoplastic chemotherapy or other therapeutic procedure associated with the Veteran’s prostate. CONCLUSION OF LAW The criteria for a disability rating in excess of 60 percent for the residual symptoms of prostate cancer, status-post prostatectomy, have not been met. 38 U.S.C § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.115(a), 4.115(b) Diagnostic Code 7528 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from April 1963 to April 1968, and again from June 1970 to June 1973. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a May 2013 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran contends that his service-connected prostate cancer residuals are more severe than represented by his current 60 percent disability rating. The Board disagrees. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected residuals of prostate cancer are rated under 38 C.F.R. § 4.115(b), Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. If there has been no current local reoccurrence or metastasis, as in this case, the disability is to be rated on residuals that are present, such as voiding dysfunction or renal dysfunction, whichever is the predominant symptomatology. See also 38 C.F.R. § 4.115(a). Voiding dysfunction is rated under three sub categories: urinary leakage, urinary frequency and obstructed voiding. The maximum rating for urinary leakage is 60 percent. The Veteran is currently assigned a 60 percent rating disability rating under this category, which contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The maximum ratings available for urinary frequency and obstructed voiding are 40 percent and 30 percent, respectively, and are thus not for consideration. A higher evaluation of 80 percent based on renal dysfunction is not warranted unless there is: persistent edema and albuminuria; or, Creatinine 4 to 8mg%; or, BUN 40 to 80mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. This is the highest schedular evaluation allowed based on voiding dysfunction. A 100 percent is not warranted for malignant neoplasms of the genitourinary system unless there is: active malignancy; or, undergoing surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. The evidence of record does not reflect that the Veteran has reported, nor does any evidence of record suggest, that the Veteran developed or experienced renal problems associated with prostate cancer. 38 C.F.R. § 4.115(a). Rather, an October 2011 VA examination noted daytime voiding intervals between two and three hours and voiding dysfunction, which requires nighttime awakening to void at least two times. The examiner also noted absorbent material that must be changed more than four times a day. As such, the Board finds that urinary leakage is the Veteran’s predominate symptom and affords him the disability rating of 60 percent, based on the Veteran’s competent lay statements and the medical opinion provided in the October 2011 VA examination. There is no evidence of record to support a higher disability rating. The preponderance of the evidence is against a finding that the Veteran meets any schedular criterion for a rating in excess of 60 percent. Thus, the Board finds that the Veteran is not entitled to a rating in excess of 60 percent for his prostate cancer. 38 C.F.R. § 4.56, 4.73, Diagnostic Code 7258. REASONS FOR REMAND The Board notes that the May 1, 2013, rating decision denied the Veteran’s claim of entitlement to an increased disability rating for scar residuals of shell fragment wounds to the left leg, right abdomen, right low back and flank. In his July 24, 2013, notice of disagreement (NOD), the Veteran indicated that he disagreed with this determination. Review of the record does not indicate that the RO has taken any action on this disagreement. The next step in the appellate process is for the RO to issue to the Veteran and the Veteran’s representative a statement of the case (SOC) to address this matter. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of an SOC. The Board emphasizes, however, that to obtain appellate review of an issue not currently in appellate status, a perfected appeal must be filed. 38 U.S.C § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. The matter is REMANDED for the following action: The RO must issue to the Veteran and his representative an SOC addressing the claim of entitlement to an increased disability rating for scar residuals of shell fragment wounds to the left leg, right abdomen, right low back, and flank. Along with the SOC, the RO must furnish to the Veteran and his representative a VA Form 9 (Appeal to Board of Veterans’ Appeals), and afford them the applicable time period for perfecting an appeal as to these issues. The Veteran and his representative are hereby reminded that appellate consideration of the matter identified above may be obtained only if a timely appeal is perfected. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Continued on Next Page This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals 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. 38 U.S.C. §§ 5109B, 7112. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Stuedemann, Associate Counsel