Citation Nr: 1807546 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-24 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial rating higher than 20 percent for adenocarcinoma of the prostate, status post radical prostatectomy, since August 1, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from April 2012 and May 2013 rating decisions of the Department of Veterans Affairs (VA), Regional Offices (ROs) in St. Paul, Minnesota and Wichita, Kansas, respectively. The RO in Wichita, Kansas currently has jurisdiction over the Veteran's claim. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2017 videoconference hearing at the RO. A transcript of the hearing has been associated with his file. As for characterization of the issue on appeal, the Board points out that the Veteran's prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 (2017), which contemplates malignant neoplasms of the genitourinary system. Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 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) (2017). If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. In the present case, the RO awarded service connection for prostate cancer in the April 2012 rating decision and assigned an initial 100 percent disability rating, from September 30, 2011. Following an August 2012 VA examination, the RO proposed to reduce the disability rating for prostate cancer from 100 percent to 20 percent by way of an August 2012 rating decision. In the May 2013 rating decision, the RO reduced the disability rating for prostate cancer, from 100 percent to 20 percent, from August 1, 2013, pursuant to DC 7528. The Veteran timely appealed the rating assigned in the May 2013 decision and indicated in his May 2013 notice of disagreement (VA Form 21-4138) that a 40 percent rating was warranted for his disability. A May 2014 statement of the case identified the issue on appeal as involving the rating assigned for the Veteran's prostate cancer and he acknowledged during the December 2017 hearing that the initial 100 percent rating was temporary and that, in the absence of active cancer, his prostate cancer was to be rated based upon its residuals. In light of the Veteran's contentions, it is clear that he has expressed disagreement with whether the proper rating has been assigned for the residuals of his prostate cancer and not with whether the rating reduction itself was proper. Therefore, the Board will not discuss whether the initial 100 percent rating was properly reduced pursuant to 38 C.F.R. § 3.105 (e) (2017). In addition, as the Veteran was awarded a total rating for prostate cancer from September 30, 2011 through July 31, 2013, the rating for this disability during this period will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). Hence, the issue on appeal has been characterized as set forth above on the title page. FINDING OF FACT Since August 1, 2013, the residuals of the Veteran's adenocarcinoma of the prostate, status post radical prostatectomy, have included urine leakage requiring the wearing of absorbent materials which must be changed no more than 4 times per day, daytime urinary frequency with a daytime voiding interval of less than one hour, and nocturia which causes awakening to void at least 4 times per night ; the Veteran has not received any surgical, X-ray, antineoplastic chemotherapy, or any other therapeutic procedure for prostate cancer since a January 2012 radical prostatectomy; there has been no local reoccurrence or metastasis of the prostate cancer and the Veteran has not experienced any associated renal dysfunction. CONCLUSION OF LAW The criteria for an initial 40 percent rating, but no higher, since August 1, 2013, for adenocarcinoma of the prostate, status post radical prostatectomy, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, DC 7528 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appeal for a higher initial rating for adenocarcinoma of the prostate, status post radical prostatectomy, arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4). VA has obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records. The Veteran has not identified, and the evidence does not otherwise reflect, that there are any outstanding relevant private treatment records. In addition, the Veteran was afforded VA examinations to assess the nature and severity of his prostate cancer and its residuals. The most recent examination conducted in August 2012 provided the findings necessary to properly rate the residuals of the Veteran's prostate cancer based upon an in-person examination. As explained in more detail below, the 40 percent rating that is being awarded for the entire period since August 1, 2013 contemplates all of the pertinent symptoms reported by the Veteran during this period. Consequently, the Board finds that the August 2012examination report (along with the other evidence of record) provides sufficient information for resolution of the appeal for a higher initial rating for adenocarcinoma of the prostate, status post radical prostatectomy, since August 1, 2013. Hence, a new examination is not necessary and there is no other reported relevant evidence that remains outstanding. II. Analysis Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson, 12 Vet. App. 119, 125-126 (1999). 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. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's adenocarcinoma of the prostate, status post radical prostatectomy, is rated under 38 C.F.R. § 4.115b, DC 7528, which contemplates malignant neoplasms of the genitourinary system (e.g. prostate cancer). Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. As applicable to this case, voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating is warranted for urine leakage that requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for 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. 38 C.F.R. § 4.115a . For a rating based on urinary frequency, a 20 percent rating is warranted where there is a daytime voiding interval between one and two hours, or if the disability results in awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. Id. A February 2012 VA prostate cancer examination report indicates that routine prostate specific antigen (PSA) testing revealed elevated levels in 2011, that prostate cancer was confirmed by biopsy, and that a radical prostatectomy was performed in January 2012. At the time of the February 2012 examination, the Veteran's cancer was in remission and he had not undergone any other treatment since the January 2012 surgery. He experienced urinary incontinence with the hope of improvement following his prostatectomy, used absorbent materials for his incontinence, and changed the absorbent materials approximately twice per hour. He also experienced increased urinary frequency in terms of nighttime awakening to void 3 to 4 times per night. The Veteran's voiding dysfunction did not require the use of an appliance and did not cause any signs or symptoms of obstructed voiding. There was no history of any recurrent symptomatic urinary tract or kidney infections. The Veteran experienced erectile dysfunction associated with his prostate surgery, but there was no retrograde ejaculation or any other residual conditions or complications due to prostate cancer or treatment for prostate cancer. There were scars associated with his prostate cancer, but none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having adenocarcinoma of the prostate. The report of an August 2012 VA prostate cancer examination reflects that the Veteran's prostate cancer remained in remission and that he had not undergone any treatment for prostate cancer since his January 2012 radical prostatectomy. He experienced urine leakage, occasionally wore absorbent materials for stress incontinence, and had a daytime voiding interval of between 1 and 2 hours. His voiding dysfunction did not require the use of an appliance and did not cause any signs or symptoms of obstructed voiding. There was no history of any recurrent symptomatic urinary tract or kidney infections. The Veteran experienced erectile dysfunction associated with his prostate cancer, but there was no retrograde ejaculation or any other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of prostate cancer, status post radical prostatectomy was provided. The Veteran reported on his June 2014 substantive appeal (VA Form 9), during VA primary care evaluations in August 2015 and October 2017, and during the December 2017 hearing that he experienced urine leakage, increased urinary frequency during the day (approximately every 45 minutes), and nocturia at least 4 times per night/every one to one and a half hours. He wore absorbent pads at night and during the day when he was not at home and changed the pads from 2 to 4 times per day. There was no dysuria or slow flow. The Veteran was diagnosed as having a malignant neoplasm of the prostate, status post retropubic prostatectomy, and was prescribed Flomax for his urinary symptoms. The above evidence reflects that the Veteran has not had any active prostate cancer during the claim period since August 1, 2013 and that he has not received any cancer treatment since his prostatectomy in January 2012. Thus, a 100 percent rating under DC 7528 is not warranted at any time during the claim period and the Veteran's disability is to be rated based upon its residuals. 38 C.F.R. § 4.115b, DC 7528. Although the January 2012 VA examination report reflects that shortly following the Veteran's January 2012 prostatectomy he used absorbent material for urinary incontinence that needed to be changed approximately twice per hour, the August 2012 examination report and the Veteran's testimony during the December 2017 hearing otherwise support a finding that during the period since August 1, 2013, he has generally occasionally required the use of absorbent materials for urinary leakage at night and when not at home and that such materials need to be changed approximately 2 to 4 times per day. Moreover, he reported a daytime voiding interval of less than one hour and nocturia at least 4 times per night/every one to one and a half hours during the August 2017 hearing. The Veteran is competent to report his urinary symptoms. Moreover, there is no evidence to explicitly contradict his reports and they are otherwise consistent with the evidence of record. Hence, the Board finds the Veteran's reports to be credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) In light of the Veteran's reports during the August 2012 VA examination and the December 2017 hearing, and resolving reasonable doubt in his favor, the Board finds that the Veteran's urine leakage and urinary frequency have most closely approximated the criteria for a 40 percent rating since August 1, 2013. Hence an initial 40 percent rating is warranted since August 1, 2013. This is the maximum schedular rating for urinary frequency. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.115a. A rating higher than 40 percent on the basis of urinary leakage is not warranted at any time since August 1, 2013 because there is no evidence during this period that the Veteran has required the use of an appliance or that he has had to change absorbent materials more than four times per day. Also, there is no evidence of any renal dysfunction. Hence, a higher rating for urinary leakage or on the basis of renal dysfunction is not warranted during the claim period. 38 C.F.R. § 4.115 (b). Although the Veteran has experienced erectile dysfunction due to his prostate cancer, service connection for this disability was granted by way of the April 2012 rating decision and entitlement to special monthly compensation based on loss of use of a creative organ was also granted in that decision. The Veteran did not appeal any aspect of that decision. There is evidence of scarring associated with the Veteran's prostate cancer surgery. To warrant a compensable rating under the applicable criteria, a scar would need to involve the head, face or neck and have at least one character of disfigurement (DC 7800); be deep and nonlinear and affect an area or areas of at least 6 square inches (39 square centimeters) (DC 7801); be superficial and nonlinear and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effect (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (2017). In this case, the Veteran's scarring does not involve the head, face, or neck and there is no evidence that such scarring is deep, nonlinear, affects an area of at least 6 square inches, is unstable or painful, or has any other disabling effects. Hence, a separate compensable rating for scarring is not warranted at any time during the claim period. Id. In light of the above evidence, an initial 40 percent rating (but no higher) for adenocarcinoma of the prostate, status post radical prostatectomy, is warranted from August 1, 2013. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, DC 7528. As a final point, the Board notes that, in conjunction with the appeal for a higher initial rating for adenocarcinoma of the prostate, status post radical prostatectomy, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial 40 percent rating, but no higher, from August 1, 2013, for adenocarcinoma of the prostate, status post radical prostatectomy is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs