Citation Nr: 18101331 Decision Date: 05/04/18 Archive Date: 05/03/18 DOCKET NO. 10-40 580A DATE: May 4, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to a disability evaluation in excess of 60 percent for adenocarcinoma of the prostate gland is denied. FINDING OF FACT For the entire rating period on appeal from November 1, 2009, the service-connected adenocarcinoma of the prostate has been manifested by urinary leakage requiring the use of absorbent material that must be changed more than four times per day, with no local recurrence of cancer or associated metastasis. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for the residuals of prostate cancer have not been met or more nearly approximated for any period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.115a, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to February 1980. In a December 2017 Decision, the Board affirmed that the reduction of the Veteran’s disability rating for adenocarcinoma from 100 percent to 60 percent, effective November 1, 2009. However, the Board also stated that “by consistently treating [the Veteran’s claim] as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). The Board finds that the RO led the Veteran to believe that the issue of entitlement to an increased rating for disability was on appeal and has therefore taken jurisdiction of that issue. The Board remanded this claim so that the Agency of Original Jurisdiction (AOJ) could consider a July 2017 VA examination for prostate cancer. The AOJ considered the examination in its January 2018 Supplemental Statement of the Case. There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (2012). 38 U.S.C. § 7107 (a)(2) (2012). 1. Entitlement to a disability evaluation in excess of 60 percent for adenocarcinoma of the prostate gland Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s adenocarcinoma of the prostate gland was evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. A note after this code provides that, 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. 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). As an initial matter, the Board finds that the Veteran was treated for prostate cancer in approximately 2005 - 2006. The Veteran does not assert, and the probative evidence of record does not otherwise show, that there has been a local reoccurrence or metastasis; therefore, there is no basis for a 100 percent disability rating under Diagnostic Code 7528. 38 C.F.R. § 4.115b. If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Here, the Veteran does not have renal dysfunction related to his prostate cancer and he was specifically noted by the July 2017 VA examiner to not have renal dysfunction due to residuals of prostate cancer; therefore, a rating based on renal dysfunction is not warranted because the weight of the evidence is against finding that renal dysfunction is the predominant residual symptom of the Veteran’s prostate cancer. Regarding voiding dysfunction, a 60 percent disability evaluation is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. A 60 percent disability evaluation represents the maximum schedular evaluation for a voiding dysfunction. Id. Obstructed voiding warrants a maximum schedular rating of 30 percent for urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is assigned for less severe symptoms. 38 C.F.R. § 4.115a. For the entire rating period on appeal from November 1, 2009, the Veteran has been in receipt of a 60 percent disability rating for the residuals of prostate cancer. After reviewing all the probative evidence, lay and medical, the Board finds that, for the rating period from November 1, 2009, the service-connected residuals of prostate cancer have been manifested by no local recurrence of cancer or associated metastasis and urinary leakage requiring the use of absorbent material that must be changed more than four times per day. The Veteran’s prostate cancer, and its residuals, has been evaluated in three VA examinations since November 2006. The November 2008 examination notes the Veteran’s prostate cancer was diagnosed and treated with radiation in 2005. The VA examiner states the Veteran developed urinary incontinence as a result of the radiation treatment. Further, the VA examiner stated that the Veteran’s voiding dysfunction requires the use of absorbent materials that must be changed 5 times per day. There was no history of urinary tract infections. The February 2013 VA examination report reflects daytime voiding intervals between 2 and 3 hours, nighttime awakening to void 3 or 4 times, and the need of absorbent material which must be changed more than four times per day. There were no symptoms of obstructed voiding or recurrent urinary tract infection. The examination notes that the Veteran’s prostate cancer remains in remission. The July 2017 VA examination report reflects daytime voiding intervals between 1 and 2 hours, nighttime awakening to void 5 or more times, and the need of absorbent material which must be changed more than four times per day. There were no symptoms of obstructed voiding or recurrent urinary tract infection. The examination notes that the Veteran’s prostate cancer remains in remission. The Veteran’s medical records establish a history of and treatment for urinary incontinence as a result of radiation treatment for prostate cancer. The probative evidence of record does not demonstrate that the Veteran’s residuals of adenocarcinoma result in renal dysfunction. The assigned 60 percent disability rating is the maximum schedular disability rating under Diagnostic Code 7528 based on voiding dysfunction; therefore, a rating in excess of 60 percent for the period from November 1, 2009, is not available. 38 C.F.R. § 4.115a. While disability ratings in excess of 60 percent are available for prostate cancer residuals when renal dysfunction predominates, voiding dysfunction has been the predominant residual symptom in this case for the entire rating period. Because the preponderance of the evidence is against the appeal for an increased rating in excess of 60 percent for the entire rating period, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel