Citation Nr: 18106916 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 12-12 208 DATE: June 1, 2018 ORDER Entitlement to an initial rating of 20-percent disabling, but no higher, prior to February 24, 2011, for urinary and stress incontinence residuals of prostate cancer (prostate cancer residuals) is granted, subject to the laws and regulations governing the award of monetary benefits; a rating higher than 40-percent disabling since February 24, 2011, is denied. FINDINGS OF FACT 1. The Veteran’s radical prostatectomy for his prostate cancer was in September 2007, more than six months prior to the start of the appeal period. 2. The Veteran’s prostate cancer residuals did not manifest in renal dysfunction or obstructed voiding. 3. Prior to February 24, 2011, the Veteran’s prostate cancer residuals manifested in urine leakage requiring the wearing of absorbent materials which had to be changed less than two times per day. 4. After February 24, 2011, the Veteran’s prostate cancer residuals did not manifest in urine leakage requiring the use of an appliance or the wearing of absorbent materials which had to be changed more than four times per day. CONCLUSION OF LAW The criteria are met for a rating of 20-percent disabling, but no higher, prior to February 24, 2011, for the prostate cancer residuals; however, the criteria are not met for a rating exceeding 40-percent disabling since February 24, 2011. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (Code) 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1963 to July 1988. He died in September 2017. The appellant is his surviving spouse and has been substituted in this appeal for the purpose of processing it to completion. This appeal to the Board of Veterans’ Appeals (Board) originated from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The Veteran’s rating for his prostate cancer residuals was reduced from 20-percent disabling to 10-percent disabling pursuant to administrative error in a May 2012 rating decision. See 38 C.F.R. §§ 3.104(a), 3.500(b)(2). (The rating, however, thereafter was increased to 40-percent disabling, effective February 24, 2011, in an April 2015 rating decision.) As a result, the Board will not be examining the propriety of the reduction pursuant to 38 C.F.R. § 3.104(e). In any event, the rating is being restored to 20-percent disabling on the merits, see below, thus any failure to discuss the reduction ultimately is non-prejudicial. Entitlement to an initial rating higher than 10-percent disabling prior to February 24, 2011, and higher than 40 percent since for the prostate cancer residuals. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). The Veteran’s prostate cancer has been evaluated pursuant to Code 7528. A 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating 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, the disorder should be rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Code 7528. Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Urine leakage requiring the wearing of absorbent materials that must be changed less than two times per day warrants a 20 percent rating. A 40 percent rating is warranted when the wearing of absorbent materials which must be changed two to four times per day is required. A (maximum) 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day is required. Id. Urinary frequency involving a daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. Urinary frequency involving a daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a (maximum) 40 percent rating. Id. Factual Background and Analysis The Veteran filed his claim for prostate cancer in December 2008, well beyond the September 2007 radical prostatectomy he underwent for treatment of this condition. See September 2007 VA treatment records. As a result, he is not automatically entitled to a 100 percent rating for six months after his surgery because the appeal period for this matter did not begin until more than a year after his surgery. Additionally, the evidence reflects he did not have renal dysfunction or obstructed voiding as a result of his prostate cancer. See May 2009, April 2012 and March 2015 VA examinations. Therefore, the Board’s analysis will focus on his symptoms of urine leakage and urinary frequency. During a May 2009 VA examination, the Veteran reported that he wears one pad a day for urine leakage protection. See May 2009 VA examination. On February 24, 2011, the Veteran’s private physician, Dr. C. Schultz, MD, opined that the Veteran had to use two to four absorbent materials due to his incontinence. See February 2011 Parkinson’s Disease Disability Benefits Questionnaire. During an April 2012 VA examination, the examiner noted that the Veteran was required to wear absorbent material that had to be changed less than 2 times per day and had a daytime voiding interval between 2 and 3 hours. See April 2012 VA examination. In February 2013, the Veteran testified that he had to urinate multiple times in the evening and frequently during the day. He stated that he had to change pads three to four times a day, but had not been provided with any type of appliance. The appellant testified that his condition had gotten worse in the past six months. See February 2013 Board hearing. During a March 2015 VA examination, the examiner noted that the Veteran had used pads in the past, having to change them two to four times a day. More recently, he had been using “overnight underwear” to avoid using nighttime pads. The examiner stated the Veteran had a daytime void interval between two and three hours and a nighttime awakening to void three to four times. See March 2015 VA examination. Prior to February 24, 2011, the evidence reflects the Veteran is entitled to a 20 percent rating for wearing absorbent materials which must be changed less than two times per day. See May 2009 VA examination (wherein the Veteran reported using pads which must be changed once a day). The preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 20 percent, because the record does not reflect he had to change absorbent materials more than two times per day and did not have daytime voiding interval of less than two hours or awakening to void more than two times per night. As a result, a rating in excess of 20 percent disabling prior to February 24, 2011 must be denied. After February 24, 2011, the Veteran would need to demonstrate requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times a day, because a rating in excess of 40 percent cannot be assigned based on urinary frequency. See 38 C.F.R. § 4.115a. The evidence does not reflect the Veteran used an appliance, nor do any of his statements contradict such evidence. See February 2013 Board hearing. Additionally, the evidence—including the Veteran’s statements—reflects that he only needed to change his absorbent materials three to four times a day. As a result, a rating in excess of 40 percent disabling after February 24, 2011 must be denied. Finally, the record has raised the issue of extraschedular consideration, as it was discussed in a May 2012 rating decision. See May 2012 rating decision. The Board has considered whether the Veteran’s service-connected prostate cancer residuals should be referred for consideration of an extraschedular rating. As discussed, his prostate cancer residuals manifested in urinary problems, to include increased frequency, voiding, and weakness, which are contemplated by the rating schedule. There is not the required suggestion of symptoms that are exceptional or unusual for prostate cancer residuals; instead, his symptoms were medically assessed as consistent with the rating assigned. Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel