Citation Nr: 20007684 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-61 265 DATE: January 29, 2020 ORDER Entitlement to a rating higher than 40 percent for residuals of prostate cancer is denied. REMANDED Entitlement to service connection for bladder cancer, to include as secondary to prostate cancer, is remanded. FINDING OF FACT The Veteran’s urine leakage does not require the use of an appliance or absorbent materials which must be changed more than four times a day. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. Increased Rating for Residuals of Prostate Cancer The Veteran’s service-connected prostate cancer residuals are currently evaluated at 40 percent disabling based on voiding dysfunction. He seeks a higher rating. See December 2016 VA Form 9; February 2017 Representative Statement. Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, a 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 is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under Diagnostic Code 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system for a period of six months following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. 38 C.F.R. § 4.115b. After that, if there has been no local recurrence or metastasis, residuals are rated based on the criteria for voiding dysfunction or renal dysfunction, whichever is predominant. Id. In this case, because there is no evidence of renal dysfunction in the record, the Veteran’s residuals are evaluated based on voiding dysfunction. Voiding dysfunction is rated under one of three subcategories: obstructed voiding, urinary frequency, or urine leakage. 38 C.F.R. § 4.115a. For obstructed voiding, a maximum 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. For urinary frequency, a maximum 40 percent rating is assigned for a daytime voiding interval less than one hour, or awakening to void five or more times a night. For urine leakage, a maximum 60 percent rating is assigned when continual leakage, post-surgical urinary diversion, or incontinence requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. After careful review, the Board finds that the Veteran is not entitled to a rating higher than 40 percent. The Veteran received VA examinations in August 2012, November 2015, and January 2017. Each examiner assessed the severity of the Veteran’s voiding dysfunction and determined that he does not require either the wearing of absorbent materials or the use of an appliance. The Veteran does not argue otherwise, and there is no evidence to the contrary in the record. The examiners’ uncontradicted clinical findings support, at most, a 40 percent rating based on urinary frequency (i.e., awakening to void five or more times a night). The Veteran generally asserts his disability has “worsened with more frequent leakage, weak stream and incomplete emptying of the bladder.” VA Form 9; see also Representative Statement (suggesting the Veteran does not need to wear absorbent materials “because he states he is always near a restroom”). He is of course competent to describe his urinary symptoms, and the Board does not doubt the credibility of his statements. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, the rating criteria for voiding dysfunction are clear and specific. The Veteran is already assigned the maximum schedular rating available for urinary frequency. A higher rating is only available where urine leakage is so severe that is requires the use of an appliance or absorbent materials which must be changed several times a day. The record shows that is not the case here. Because the preponderance of evidence is against an increased rating, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. REASONS FOR REMAND The Veteran has set forth three alternative theories of entitlement for service connection for bladder cancer. First, he contends his bladder cancer is related to the pelvic radiation used to treat his service-connected prostate cancer. Second, he attributes it to in-service herbicide agent exposure. Third, he attributes it to in-service exposure to diesel fumes. He has submitted various medical articles in support of each theory. See e.g. VA Form 9; February 2017 Correspondence. Remand to the agency of original jurisdiction (AOJ) for additional development is warranted. In August 2012, a VA examiner opined that prostate cancer did not cause the Veteran’s bladder cancer, because they are two different histologic types of cancer. However, the examiner did not address whether the service-connected cancer (or residuals thereof) aggravated the bladder cancer beyond its natural progress, as provided in 38 C.F.R. § 3.310. Nor did he address the Veteran’s specific contention that radiation treatment contributed to the bladder cancer. Consequently, the opinion is not adequate. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (VA medical opinions on secondary service connection must sufficiently address both causation and aggravation). Moreover, there is no medical opinion of record regarding the Veteran’s contentions about herbicide agent and diesel fume exposure. The Veteran is presumed to have been exposed to Agent Orange while stationed in Vietnam. See February 2006 Rating Decision. Although bladder cancer is not one of the diseases associated with herbicide agent exposure listed at 38 C.F.R. § 3.309(e), he is nevertheless entitled to prove service connection on a direct basis with appropriate medical evidence. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To that end, he has submitted a Mayo Clinic article suggesting that exposure to certain chemicals may increase the risk of bladder cancer. The Veteran has also provided a detailed account of in-service exposure to diesel fumes, as well as an American Cancer Society article suggesting a link between such exposure and bladder cancer. See January 2014 Correspondence; February 2017 Correspondence. On remand, a VA examiner should review the evidence submitted by the Veteran and provide an opinion on the etiology of his bladder cancer. The matter is therefore REMANDED for the following action: 1. Obtain an opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s bladder cancer. The examiner must review the claims file, including this remand, and schedule the Veteran for an in-person examination as needed. The examiner must address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bladder cancer is etiologically related to service (e.g., due to in-service herbicide agent and/or diesel fume exposure)? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bladder cancer was caused by or proximately due to his service-connected prostate cancer (e.g., due to pelvic radiation treatment)? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bladder cancer was aggravated by his service-connected prostate cancer (e.g., due to pelvic radiation treatment)? The term “aggravated” refers to a worsening of the disability beyond its natural clinical course and character. The examiner should discuss the relevance of the medical articles and any other evidence submitted in support of the Veteran’s contentions. 2. Review the above opinion(s) to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. (continued on next page) 3. Readjudicate the Veteran’s claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.