Citation Nr: 18156721 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-59 350 DATE: December 11, 2018 ORDER The discontinuance of the 100 percent rating for prostate cancer, effective May 1, 2015, was proper. Entitlement to rating in excess of 40 percent for prostate cancer in remission with residual neurogenic bladder since May 1, 2015, is denied. FINDINGS OF FACT 1. In November 2012, the Regional Office (RO) granted service connection for prostate cancer and assigned a 100 percent rating, effective August 5, 2011. 2. Following the cessation of treatment for prostate cancer, a February 2014 VA examination revealed no active prostate cancer, but identified residuals of prostate cancer. 3. In an April 2014 rating decision, the RO proposed to reduce the rating for prostate cancer from 100 percent to 40 percent; the RO notified the Veteran and his representative of this proposed action in an April 2014 letter. 4. In a February 2015 rating decision, the RO discontinued the 100 percent rating for prostate cancer, and assigned a 40 percent rating for prostate cancer in remission with residual neurogenic bladder, effective May1, 2015. 5. From May 1, 2015, the Veteran’s prostate cancer in remission with residual neurogenic bladder results in a predominant disability that more nearly approximates urinary frequency with either daytime voiding interval that is less than one hour or awaking to void 5 or more time per night. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent rating for prostate cancer, effective May 1, 2015, was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 4.115a, 4.115b, Diagnostic Code 7528 (2018). 2. From May 1, 2015, the criteria for a rating in excess of 40 percent for prostate cancer in remission with residual neurogenic bladder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from December 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in February 2015. The Veteran perfected an appeal. See July 2015 Notice of Disagreement (NOD); November 2016 Statement of the Case (SOC); November 2016 VA Form-9. 1. Prostate Cancer in Remission with Residual Neurogenic Bladder The Veteran appeals the discontinuance of the 100 percent rating for prostate cancer, and the 40 percent rating assigned for prostate cancer in remission with residual neurogenic bladder, effective May 1, 2015. The Veteran contends that a higher rating is warranted for the prostate cancer residuals. The Veteran was assigned a 100 percent rating for prostate cancer under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, for malignant neoplasms of the genitourinary system. The Note following the diagnostic code provides that, following cessation of surgery, 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. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then a Veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant. 38 C.F.R. § 4.115b, DC 7528. The Board notes that the appealed issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344. This is so because, the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, contain a temporal element for continuance of a 100 percent rating for prostate cancer. Where, as with prostate cancer, a diagnostic code requires the assignment of a 100 percent rating for a finite period of time, followed by the requirement that the disorder thereafter be rated based on residuals, the assignment of a lower rating based on those residuals does not constitute a reduction. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). Accordingly, the Board must determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under DC 7528. The evidence of record shows that the Veteran received no surgery, chemotherapy, other therapeutic procedure for prostate cancer after the conclusion of radiation therapy in November 2011. A January 2013 VA examination found that the Veteran’s prostate cancer was still active, but noted that treatment was completed and the Veteran was currently in a watchful waiting status. The Veteran’s prostate and genital examination findings were normal, and results on a prostate-specific antigen (PSA) test were within normal limits. A February 2013 rating decision continued the Veteran’s 100 percent evaluation based on active malignancy. The Veteran was next scheduled for a VA examination in February 2014, at which time, it was noted that he completed radiation therapy in November 2011 and his prostate cancer was found to be in remission. Here, the Veteran was notified of the RO's intent to discontinue the 100 percent rating for the service-connected prostate cancer by letter dated April 2014. Thereafter, the Veteran was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. 38 C.F.R. § 105(e), (i). The final action to discontinue the 100 percent rating for prostate cancer, and assign a 40 percent for prostate cancer residuals, was taken pursuant to 38 C.F.R. § 3.105(e) in February 2015. The discontinuance of the 100 percent rating, and assignment of the 40 percent rating based on the ratable prostate cancer residuals, was made effective May 1, 2015. Based on a review of this procedural history, VA has complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights. He was given the opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner that permitted by current law and regulations (“the last day of the month in which a 60-day period from the date of the notice to the beneficiary of the final action expires”). The Veteran has not contended that these provisions were not complied with, or that he was receiving any treatment for prostate cancer after November 2011. Hence, VA properly discontinued the 100 percent rating, and rated the Veteran based on the prostate cancer residuals, as directed by 38 C.F.R. § 4.115b, Diagnostic Code 7528. Having concluded that procedurally and substantively the RO correctly discontinued the 100 percent rating for prostate cancer, the Board turns to the question of whether the assigned 40 percent rating for prostate cancer in remission with residual neurogenic bladder was proper. As previously noted, Diagnostic Code 7528 provides that if there is no local reoccurrence or metastasis, then the Veteran’s residuals are rated under the criteria for voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The ratings for renal dysfunction and voiding dysfunction are found at 38 C.F.R. § 4.115a. The criteria for renal dysfunction provides that a 100 percent rating is warranted where the Veteran requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted where there is persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent rating is warranted where there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. The criteria for voiding dysfunction requires the condition to be rated as urine leakage, frequency, or obstructed voiding. For urine leakage, a 60 percent rating is warranted when the disability requires the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. A 40 percent rating is warranted when the disability requires the wearing of absorbent materials that must be changed 2 to 4 times per day. See 38 C.F.R. § 4.115a. For urinary frequency, a 40 percent rating requires either daytime voiding interval that is less than one hour or an awakening to void five or more times per night. This is the maximum rating for voiding dysfunction. Id. For obstructed voiding, a 30 percent rating is warranted for urinary retention requiring intermittent or continuous catherization. Id. In this regard, the Board finds a 40 percent rating, and no higher, is appropriate. The evidence does not show local reoccurrence or metastasis of the Veteran's prostate cancer. The cancer is noted to be in remission and radiation therapy was completed in November 2011. See February 2014 Disability Benefits Questionnaire (DBQ); February 2015 DBQ; May 2015 DBQ; November 2016 DBQ; May 2018 DBQ. The February 2014 prostate cancer DBQ reflects that the Veteran’s prostate cancer was in remission but found residuals that included a voiding dysfunction which caused urine leakage, but did not require the wearing of absorbent material. Symptoms included increased urinary frequency, noted to include daytime voiding at an interval of less than 1 hour and nighttime awakening to void 5 or more times. Additionally, there were symptoms of obstructed voiding, including marked hesitancy, markedly slow or weak stream, and markedly decreased force of stream. There was no evidence of symptomatic urinary tract or kidney infections. Other residual conditions included loose bowels since treatment. See February 2014 DBQ. In an April 2014 statement, the Veteran reported that he utilized absorbent pads several times on a daily basis. He reported continuous use of the restroom due to his bowels being “out of control.” See April 2014 Statement in Support of Claim. On a February 2015 DBQ, the Veteran’s prostate cancer remained in remission. The Veteran continued to experience a voiding dysfunction with the same symptomatology and frequency noted on the February 2014 DBQ, with the exception of loose bowels. See February 2015 DBQ. A May 2015 DBQ notes that the Veteran’s prostate cancer has been in remission but that he developed neurogenic bladder due to radiation therapy side effects. The Veteran had some obstructive uropathy symptoms for which his urologist prescribed Finasteride and Tamsulosin without significant improvement. A transurethral resection of the prostate (TURP) procedure had been advised. Although the condition had been in remission, voiding dysfunction was noted to be persistent and worsening. The Veteran’s voiding dysfunction caused urine leakage but did not require use of absorbent material. The Veteran had symptoms of urinary frequency with a daytime voiding interval between 2 and 3 hours and nighttime awakening to void 2 times. There were symptoms of obstructed voiding with marked hesitancy, markedly slow or weak stream, and markedly decreased force of stream. The Veteran’s voiding dysfunction did not require the use of an appliance and he had no history of recurrent symptomatic urinary tract or kidney infection. See May 2015 DBQ. A November 2016 DBQ noted voiding dysfunction which caused urine leakage, but did not require the wearing of absorbent material. There was increased urinary frequency, with daytime voiding at an interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. Additionally, there were symptoms of obstructed voiding, including hesitancy and slow stream, although not marked. There was no evidence of symptomatic urinary tract or kidney infections. Other residual conditions included chronic diarrhea that may have been related to local XRT. There was no evidence of renal dysfunction due to the condition. See November 2016 DBQ. In a November 2016 substantive appeal, the Veteran stated that he disagreed with VA’s conclusion that his condition was in remission and symptoms were improving. In this regard he reported difficulties and disruptions in his everyday life due to constantly using the bathroom, which he described as frequent urination 5-6 times in the daytime and 3-5 times at night. He further reported constant bowel movements with diarrhea. The Veteran indicated that he used Flomax for the control of his urination, but reported that it had no effect on a nighttime burning sensation or on the tremendous amount of urination hesitation he experienced. The Veteran also noted that he experienced accidents with urination and diarrhea. See November 2016 VA Form-9. A May 2018 DBQ noted that the Veteran’s prostate cancer remained in remission, although he continued to have voiding dysfunction. Voiding dysfunction did not cause urine leakage or require the use of an appliance. The Veteran continued to experience increased urinary frequency with a daytime voiding interval between 2 and 3 hours and nighttime awakening to void 2 times. There were symptoms of obstructed voiding with marked hesitancy, markedly slow and weak stream, and markedly decreased force of stream. There was no evidence of recurrent symptomatic urinary tract or kidney infections. See May 2018 DBQ. Based on the foregoing, the preponderance of the evidence is against a rating in excess of 40 percent for prostate cancer in remission with residual neurogenic bladder. As detailed above, the Veteran has undergone several examinations during the course of the appeal which continue to show that his prostate cancer is in remission. The evidence does not show, and the Veteran does not contend that his cancer has reoccurred. Although the Veteran noted his disagreement with VA’s findings in his November 2016 substantive appeal, the substance of his disagreement centered on whether there had been improvement in his symptoms rather than an assertion that there had been a reoccurrence of his prostate cancer. The Veteran's symptoms of residuals of prostate cancer include voiding dysfunction, urinary frequency, and obstructed voiding. While urinary frequency is evident from the record, the Veteran is already receiving a 40 percent rating, the highest available evaluation for urinary frequency. Similarly, the maximum available evaluation for obstructed voiding is 30 percent; thus, it is of no advantage to rate the Veteran’s residuals under obstructed voiding. In any event, there is no evidence to suggest that the Veteran has urinary retention requiring intermittent or continuous catheterization to warrant a 30 percent rating under obstructive voiding. The examinations of record note that the Veteran’s voiding dysfunction does not require the wearing of absorbent materials or an appliance, although the Veteran has provided lay statements that he utilizes absorbent pads several times on a daily basis. See April 2014 Statement in Support of Claim. While the Board finds the Veteran’s statements regarding the use of absorbent pads to be both competent and credible, the Board is not persuaded that his use of absorbent pads “several times” daily equates to the wearing of absorbent materials which must be changed more than 4 times per day. In this regard, it is notable to that no VA examiner over the course of 5 examinations has found that the Veteran’s voiding dysfunction requires the wearing of absorbent materials. Thus, while it is certainly plausible that the Veteran utilizes absorbent materials, perhaps for greater peace of mind given his noted urine leakage, the evidence does not suggest that such materials are required, or that they must be changed more than 4 times per day. In further support of this finding, the most recent DBQ in May 2018 found that the Veteran’s voiding dysfunction no longer causes urine leakage. Additionally, there is no evidence to support, and the Veteran does not contend, that he has ever required the use of an appliance. As such, the Board finds that the evidence does not support a finding that the Veteran requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day to warrant a 60 percent rating for voiding dysfunction under 38 C.F.R. § 4.115b. Lastly, the record contains no evidence of signs or symptoms of renal dysfunction due to prostate cancer residuals, and there is no evidence that the Veteran has a kidney condition which is a residual of his prostate cancer. Thus, there is no basis for a rating under these residuals. Similarly, the evidence does not show that the Veteran experienced urinary tract infections to warrant a rating under that residual. For the reasons discussed above, the Board finds that the Veteran’s prostate cancer in remission with residual neurogenic bladder results in a predominant disability that more nearly approximates urinary frequency with either daytime voiding interval that is less than one hour or awaking to void 5 or more time per night. Hence, a rating in excess of 40 percent, based on prostate cancer residuals, is not warranted for the period from May 1, 2015. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis