Citation Nr: 1806626	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-23 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for postoperative bladder cancer. 


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Wade, Associate Counsel






INTRODUCTION

The Veteran served in the United States Marine Corps from October 1965 to August 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Atlanta, Georgia, that assigned a 10 percent rating for the residuals of bladder cancer, after granting service connection for the same.

The Board previously remanded the case for additional development in February 2016.  That development having been completed, the case is now once again before the Board for adjudication.


FINDING OF FACT

The Veteran's symptoms of urinary frequency and voiding symptoms are unrelated to his service-connected bladder cancer and are instead secondary to age-related benign prostatic hypertrophy.  Renal functioning is normal.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for residuals of bladder cancer have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, (2017).

Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits.

II. Increased Rating for Bladder Cancer Residuals 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10 (2017).  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different rating for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Under 38 C.F.R. § 4.115b, Diagnostic Code 7528, malignant neoplasms of the genitourinary system are to be evaluated as 100 percent disabling.  Following the cessation of surgical, 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.  If there has been no local recurrence of metastasis of the neoplasm, it is to be rated based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant.

Voiding dysfunction, in turn, is evaluated under the rating criteria for urinary frequency, urine leakage or obstructed voiding based on the nature of the disability in question.  38 C.F.R. § 4.115a (2017).

The rating criteria for urinary frequency include daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating; daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating; daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent rating.  Id.

Rating with reference to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requires the wearing of absorbent materials which must be changed less than two times per day, for which a 20 percent rating would be assigned.  The wearing of absorbent materials which must be changed two to four times per day warrants a 40 percent rating.  The use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating.  Id.  

Obstructed voiding with: obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a noncompensable rating; 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; markedly diminished peak flow rate (less than 10 cc/sec).  3.  Recurrent urinary tract infections secondary to obstruction.  4.  Stricture disease requiring periodic dilatation every two to three months warrants a 10 percent rating.  Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating.

The Veteran was service connected for bladder cancer, postoperative in a September 2011 rating decision.  The RO assigned an evaluation of 10 percent from February 10, 2009 based on the Veteran's daytime voiding of every 2 to 3 hours.  The Veteran filed his Notice of Disagreement (NOD) in November 2011.  In his NOD, the Veteran stated that he believed his current condition was more in line with the criteria for a 20 percent rating under Diagnostic Code 7528.  

As referenced in an October 2009 VA examination, the Veteran was diagnosed in 2001 with bladder cancer.  At the time, the Veteran was treated by a private urologist in Brunswick, GA.  The Veteran underwent laparoscopic surgery for the removal of his cancer, but was not required to undergo chemotherapy or radiation therapy.  After this, he had follow-ups by cystoscopy every 3 months for the first 2 years and then every six months until October 2015.  At the time of the VA examination, the Veteran denied any symptoms.  He denied renal dysfunction.  He reported voiding every two to three hours during the daytime and a couple of times at nights.  He does have hesitancy of stream of urine due to his prostate enlargement.  He denied incontinence.  He denied any effects on daily activity due to bladder cancer.  He retired from his job in 2000 and this was not due to health problems.  He denied any residuals of genitourinary disease.  

Although the Veteran underwent an examination in October 2009, the examiner at this examination did not give detailed clinical findings because the examination focused on the etiology of the Veteran's bladder cancer and not the severity of the condition.

After this examination, the Veteran submitted documentation from his private physician stating that the Veteran had developed additional "lower urinary tract symptoms."  See November 2011 Dr. D.M.K., M.D., PhD. Letter.  This letter contained no specificity as to the Veteran's exact symptoms.  Additionally, the medical treatment records in the Veteran's claim file, at the time, did not fully detail the daily symptomology of the Veteran.  Therefore, the Veteran's claim was remanded to the agency of original jurisdiction (AOJ) for a VA examination to assess the current severity of the Veteran's condition and the worsening described by the Veteran and his private physician.  

In August 2016, the Veteran underwent a VA examination for Urinary Tract Conditions.  The examination revealed normal renal function.  However, the examination did show that the Veteran had a voiding dysfunction that caused increased urinary frequency.  The Veteran's voiding dysfunction caused daytime voiding between 2 and 3 hours; and nighttime awakening to void 5 or more times.  Moreover, the VA examiner in this examination also found that the Veteran's voiding dysfunction caused signs or symptoms of obstructive voiding.  These symptoms included hesitancy, slow stream, weak stream, and decreased force of stream. 

Despite these findings, the August 2016 VA examiner opined that the Veteran had no bladder cancer residuals.  While the Veteran had symptoms of urinary frequency and obstructive voiding consistent with voiding dysfunction, the examiner found that these symptoms were caused by his enlarged prostate (benign prostatic hypertrophy) and were not related to his bladder cancer.  Instead, the examiner indicated that BPH is a natural process that had occurred with the Veteran's aging.

The Board has carefully reviewed and considered the Veteran's lay statements as they appear in the record, as well as his reports during examinations, as they appear throughout the record, all of which have assisted the Board in better understanding the nature and development of the Veteran's disabilities.

Lay people are competent to report on matters observed or within their personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Therefore, the Veteran is competent to provide statements regarding his symptoms, such as urinary frequency, which are observable to his senses and there is no reason to doubt his credibility.  However, the Veteran is not competent to ascribe his symptoms to his service-connected bladder cancer as opposed to his non-service connected BPH as such requires medical expertise.  Therefore, his statement are of limited probative value compared to those of the August 2016 examiner who found essentially no bladder cancer residuals and ascribed the Veteran's urinary and voiding symptoms to non-service connected BPH. 

Moreover, the Board must look to clinical findings when there are contradictory findings or statements inconsistent with the record.  The Board cannot render its own independent medical judgments and therefore, in the absence of an explicit indication in the contemporaneous evidence of continuous symptoms or an increase in severity, it must rely on medical findings and opinions.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  

While the Board acknowledges the claims file includes a November 2011 letter from Dr. D.M.K., M.D, PhD discussing the Veteran's development of "lower urinary tract symptoms," this letter, alone, is not sufficient to outweigh the probative value of the findings from the August 2016 DBQ examination.  As stated in the September 2016 Supplemental Statement of the Case, the RO sent the letter in May 2016 requesting that the Veteran provide the RO with names and contact information of any private doctors or hospitals that may have treated the Veteran for his bladder cancer.  Unfortunately, it appears from the record that the Veteran never sent in the supplemental information.  Absent any additional medical records or opinions from the visits with Dr. D.M.K., M.D., PhD. the November 2011 letter lacks probative value.  The August 2016 VA examiner explained the reasons for her conclusions and based them on accurate characterizations of the evidence of record, an in-person examination of the Veteran, and detailed clinical findings.  Therefore, the VA examiner's findings in the August 2016 examination are entitled to substantial probative weight.

For the reasons stated above, the Board finds the record does not contain supporting medical findings, an adequate opinion or related factors to support a rating in excess of 10 percent.  Nor is there evidence indicating that the ratings under Diagnostic Code 7528 are inadequate and do not reasonably contemplate the level of severity and symptomatology of the Veteran's service-connected disabilities.   

The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence.  The preponderance of the evidence is against the claim.  The doctrine is not applicable and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.


ORDER


Entitlement to an initial disability rating in excess of 10 percent for postoperative bladder cancer is denied.




____________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs