Citation Nr: 18136167 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 15-00 908 DATE: 1. Entitlement to a disability rating for prostate cancer in excess of 20 percent from January 24, 2012 to July 27, 2014, and in excess of 40 percent from July 28, 2016 to March 21, 2017. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for bilateral tinnitus. 4. Entitlement to service connection for a loss of the sense of smell disability. September 18, 2018 ORDER Entitlement to a disability rating for prostate cancer in excess of 20 percent from January 24, 2012 to February 19, 2014 is denied. Entitlement to an increased disability rating for prostate cancer of 40 percent from February 20, 2014 to July 27, 2016 is granted. Entitlement to a disability rating for prostate cancer in excess of 40 percent from July 28, 2016 to March 21, 2017 is denied.   REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to service connection for a loss of the sense of smell disability is remanded. FINDINGS OF FACT 1. From January 24, 2012 through February 19, 2014, the Veteran’s prostate cancer disability was manifested by a voiding dysfunction with a slow stream with decreased force, a daytime interval of 1 to 2 hours and waking 3 to 4 times at night to void. 2. From February 20, 2014 through July 27, 2016, the Veteran’s prostate cancer disability was manifested by a voiding dysfunction with a slow stream with decreased force, a daytime interval of 1 to 2 hours, waking 3 to 4 times at night to void and requiring the wearing of absorbent material needing to be changed twice per day. 3. From July 28, 2016 through March 21, 2017, the Veteran’s prostate cancer disability was manifested by a voiding dysfunction with a slow stream with decreased force, a daytime interval of 1 to 2 hours, waking 3 to 4 times at night to void and requiring the wearing of absorbent material needing to be changed twice per day. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent from January 24, 2012 through February 19, 2014, have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code 7528 (2017). 2. The criteria for a disability rating of 40 percent, but no higher, from February 20, 2014 through July 27, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code 7528 (2017). 3. The criteria for a disability in excess of 40 percent from July 28, 2016 through March 21, 2017, have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1965 to October 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that the RO granted service connection for diabetes mellitus, type II, in an October 2014 rating decision. In his December 2014 substantive appeal the Veteran listed the issue of entitlement to service connection for diabetes mellitus as an issue. The Veteran’s attorney submitted a letter in May 2015 that was accepted by the RO as a Notice of Disagreement (NOD) in response to this rating decision. The RO issued a Statement of the Case (SOC) for this matter in March 2018. Neither the Veteran nor his representative has submitted a substantive appeal regarding the rating decision for this matter. As such, the issue of entitlement to an increased rating for diabetes mellitus, type II, is not in appellate status. In his December 2014 substantive appeal, the Veteran requested a Board videoconference hearing. The Veteran was informed that a hearing had been scheduled for June 7, 2018 at the Montgomery, Alabama RO in letters dated May 3, 2018 and May 22, 2018. The Board notes that the Veteran cancelled the hearing, with no request made for another. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Entitlement to a disability rating for prostate cancer in excess of 20 percent from January 24, 2012 to July 27, 2014, and in excess of 40 percent from July 28, 2016 to March 21, 2017. The Veteran was granted service connection for prostate cancer in an April 2010 rating decision. An initial disability rating of 100 percent was assigned, effective February 25, 2010. In a May 2011 rating decision, the disability rating was reduced to 10 percent, effective July 1, 2011. VA received a claim for an increased disability rating on January 24, 2012 and in a June 22, 2012 rating decision, the disability rating was increased to 20 percent, effective January 24, 2012. In a March 5, 2018 rating decision, the disability rating was increased to 40 percent, effective July 28, 2016, and then to 100 percent, effective March 22, 2017. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See, Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See, Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). At all times throughout the appeal the Veteran’s prostate cancer has been rated under Malignant neoplasms of the genitourinary system, DC 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, at which time the Veteran is to be provided a VA examination. 38 C.F.R. 4.115b, Diagnostic Code 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. 4.115b, Diagnostic Code 7528. VA and private medical records demonstrate no local reoccurrence or metastasis of the Veteran's prostate cancer before March 22, 2017, and the Veteran has not contended otherwise. Accordingly, the Veteran is not entitled to a 100 percent disability rating at any time during the appeal period. Instead, for the entire rating period, the Veteran's disability is properly rated based on residual symptoms, either as a voiding dysfunction or a renal dysfunction, whichever is predominant. See 38 C.F.R. 4.115b, DC 7528. Voiding dysfunction is evaluated under 38 C.F.R. 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. 4.115a. Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. Under obstructed voiding conditions, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for 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 demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id. Renal dysfunction is also evaluated under 38 C.F.R. 4.115a. A 100 percent disability rating is warranted for regular dialysis or such dysfunction that precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, a BUN [blood urea nitrogen] level more than 80 mg% [milligrams of urea nitrogen per 100 milliliters of blood]; or a creatine level more than 8mg% [milligrams of serum creatine per 100 milliliters of blood]; or, markedly decreased function of the kidney or other organ systems, especially cardiovascular. An 80 percent disability rating requires persistent edema and albuminuria with a BUN level of 40mg% to 80mg%; or a creatine level of 4mg% to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent disability rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. A 30 percent disability rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A non-compensable disability rating is warranted for albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. Id. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). VA received the Veteran’s claim for an increased disability rating for his prostate cancer on January 24, 2012. The Veteran was afforded a VA prostate examination in May 2012. It was noted that the Veteran's prostate cancer was in remission. The Veteran reported increased urinary frequency, nocturia and chronic erectile dysfunction, as well as erratic PSA levels. It was noted that the Veteran has a voiding dysfunction with a daytime interval of 1 to 2 hours waking 3 to 4 times at night to void. Slow or weak stream with decreased force of stream were noted. The Board acknowledges the Veteran's reports regarding his residuals of prostate cancer, and notes that the Veteran is competent to report such symptoms. See, Layno v. Brown, 6 Vet. App. 465, 470 (1994). In an October 2012 comprehensive health assessment from Henagar Family Medicine, the Veteran denied incontinence. In a May 2013 comprehensive health assessment from Henagar Family Medicine, incontinence was noted. An August 2013 VA treatment record notes the Veteran's urinary urgency is stable, though the Veteran did report urinary leakage with urgency. It was further noted that the Veteran “may need pads in the future.” A February 20, 2014 2014 VA treatment record notes the Veteran “[s]till has intermittent [urge urinary incontinence]” and was wearing two pads per day. An August 2014 VA treatment letter notes the Veteran “[s]till has intermittent [urge urinary incontinence]” and was wearing one pad per day. In an October 2014 letter, the Veteran’s representative submitted a letter in which it was asserted that, due to his prostate, the Veteran wears absorbent materials that must be changed at least two times per day, and sometimes more. It was further noted that the absorbent material was provided by the Veterans Health Administration. The Veteran was afforded a VA prostate cancer examination on July 28, 2016. It was noted that the Veteran's prostate cancer was in remission. It was noted that the Veteran has a voiding dysfunction that causes urine leakage requiring absorbent material which must be changed 2 to 4 times per day. Daytime urinary frequency of 2 to 3 hours. An August 2016 VA treatment record notes the veteran was prescribed incontinence pads at the frequency of twice per day. A March 22, 2017 VA treatment record notes a diagnosis of prostate cancer. The Veteran was afforded a VA prostate cancer examination in January 2018. It was noted that the Veteran's prostate cancer is active and was in ongoing androgen deprivation therapy. The Veteran's voiding dysfunction was not noted as causing urine leakage but not requiring the wearing of absorbent material. A daytime voiding interval of 2 to 3 hours was noted, as waking to void 2 times per night. A March 2018 rating decision granted the Veteran a 100 percent disability rating, effective March 22, 2017, for prostate cancer. This is the maximum benefit for this disability. Considering the totality of the evidence, the Board finds that from January 24, 2012 to February 19, 2014, the Veteran’s disability picture more nearly approximates that contemplated by the 20 percent rating, and no more. The Board notes that while there is some evidence of incontinence, there is no evidence of use of absorbent material received prior to February 20, 2014. Prior to that date, the competent evidence shows the Veteran’s prostate cancer disability manifested with a voiding dysfunction with a slow stream with decreased force, a daytime interval of 1 to 2 hours and waking 3 to 4 times at night to void. Renal dysfunction was not noted. The Board notes that the RO increased the Veteran’s disability rating from 20 percent to 40 percent, effective July 28, 2016, and then from 40 percent to 100 percent, the schedular maximum, effective March 22, 2017. Considering the totality of the evidence, the Board finds that the Veteran’s disability picture more nearly approximates that contemplated by the 40 percent rating, and no more, from February 20, 2014, through March 21, 2017. Prior to that date, the competent evidence shows the Veteran’s prostate cancer disability manifested with a voiding dysfunction with a slow stream with decreased force, a daytime interval of 1 to 2 hours and waking 3 to 4 times at night to void. Renal dysfunction was not noted. Furthermore, while the evidence after February 20, 2014 is mixed regarding the frequency of changing for absorbent material, specifically whether once or twice per day was required, the Board finds it will resolve the issue in favor of the Veteran. 38 C.F.R. § 4.7. The Board finds that at no point during the period of appeal does the evidence show that the Veteran's prostate cancer are of a severity, frequency, and duration so as to meet or approximate that contemplated by the 60 percent rating. There has been no evidence submitted showing 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, nor has renal dysfunction been shown. As such, the Board finds that at no point during the period of appeal does the weight of the evidence demonstrate that the Veteran’s prostate cancer does not meet any of the criteria for a 60 percent rating and that his symptoms are substantially less than those reflective of a 60 percent rating. Consequently, the Veteran does not more nearly meet or approximate the criteria for a 60 percent rating. See 38 C.F. R. § 4.7. As discussed above, a March 2018 rating decision granted the Veteran a 100 percent disability rating, effective March 22, 2017, for prostate cancer. This is the maximum benefit for this disability. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Board notes that the June 2012 VA examination did not provide an opinion on the etiology of the Veteran’s hearing loss. Furthermore, the opinion provided did not discuss the Veteran’s exposure to hazardous noise levels while in service and relied exclusively on no hearing loss being shown by the Veteran’s separation examination. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Board notes that normal hearing at separation is not fatal to a claim of service connection for hearing loss. See, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, this matter is remanded for a new VA examination. 2. Entitlement to service connection for bilateral tinnitus is remanded. The Board notes that the June 2012 VA examination relied exclusively on no tinnitus being diagnosed or otherwise shown while in service and provided no opinion as to the likely etiology of the diagnosed tinnitus. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. As such, this matter is remanded for a new VA examination. 3. Entitlement to service connection for a loss of the sense of smell disability is remanded. The Veteran has consistently asserted that he suffers from a disability characterized by the loss of his sense of smell. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether any such disability is related to the Veteran’s service. As such, this matter is remanded for a VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability and tinnitus for the purpose of their existence and whether they are at least as likely as not related to an in-service injury, event, or disease, including acoustic trauma from loud noise. The examiner must opine as to whether it at least as likely as not that the Veteran has a bilateral hearing loss disability that (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must also opine whether the Veteran has bilateral tinnitus that is at least as likely as not related to an in-service injury, event, or disease, including acoustic trauma from loud noise. The examiner’s attention is invited to a September 1968 hearing conservation data form which estimates the Veteran’s hearing as "fair". The examiner’s attention is invited to an August 1969 hearing conservation data form which estimates the Veteran’s hearing as "good". 3. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any loss of sense of smell disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel