Citation Nr: 20032734 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 14-33 505 DATE: May 11, 2020 ORDER A disability rating of 60 percent, but no higher, prior to August 21, 2019, for service-connected residuals of prostate cancer status post robotic prostatectomy (residuals of prostate cancer) is granted, subject to the rules governing the payment of monetary awards. A disability rating in excess of 60 percent from August 21, 2019, for residuals of prostate cancer is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s residuals of prostate cancer have manifested in urine leakage that require the wearing of absorbent materials that must be changed 4 or more times per day. CONCLUSION OF LAW For the entire period on appeal, the criteria for a disability rating of 60 percent, but no higher, for service-connected residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1969 to August 1973. A hearing was held before the undersigned Veterans Law Judge (VLJ) in January 2018. A transcript of this hearing is associated with the claims file. In April 2018, the Board of Veterans Appeals (Board) remanded the claims of entitlement to service connection for bilateral hearing loss and entitlement to a disability rating in excess of 40 percent for service-connected residuals of prostate cancer for further development. In a March 2020 rating decision, the Regional Office (RO) granted service connection for bilateral hearing loss and awarded a higher disability rating of 60 percent for residuals of prostate cancer, effective August 21, 2019. As the grant of service connection for bilateral hearing loss represents a full grant of the benefit sought, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, as the increased disability rating of 60 percent, effective from August 21, 2019, for residuals of prostate cancer does not constitute a full grant of the benefit sought, that claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. 2. Entitlement to a disability rating in excess of 40 percent prior to August 21, 2019 and 60 percent thereafter for service-connected residuals of prostate cancer The Veteran’s residuals of prostate cancer are rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7527, for prostate gland injuries, infections, hypertrophy, or postoperative residuals. Diagnostic Code 7527 instructs to rate as voiding dysfunction or urinary tract infection, whichever is predominant. The criteria for voiding dysfunction and urinary tract infection are found in § 4.115a. Here, the Veteran’s predominant disability is urinary leakage. See 38 C.F.R. § 4.115b, Diagnostic Code 7527. Therefore, of the voiding dysfunction, the criteria relating to urinary frequency would provide for the highest evaluation. For urine leakage, a 20 percent rating for a voiding dysfunction is warranted when wearing absorbent materials which must be changed less than two times per day is required. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. The 60 percent rating is the highest schedular rating available for voiding dysfunction. Notably, the Veteran also has symptoms of urinary frequency. Urinary frequency provides for ratings ranging from 10 to 40 percent. Because the Veteran is already in receipt of, at least, a 40 percent disability rating for his service-connected disability, a higher rating is not available based on urinary frequency. Lastly, it is noted that the Veteran has a diagnosis of erectile dysfunction associated with his residuals of prostate cancer. However, he has been separately awarded service connection for that disability and the rating of that disability is not on appeal before the Board; therefore, these symptoms will not be evaluated further. As indicated above, the Veteran’s residuals of prostate cancer are currently assigned a 40 percent disability rating prior to August 21, 2019, and a 60 percent disability rating thereafter. The March 2020 rating decision explains that August 21, 2019 was used as the effective date for the increased award because that was the date of the VA examination, which showed entitlement to a 60 percent disability rating was warranted for the Veteran’s residuals of prostate cancer. In correspondence received in April 2010, the Veteran’s representative argued that the Veteran’s residuals of prostate cancer warranted a 60 percent disability rating for the entire period at issue and not just from August 21, 2019. After reviewing the entire claims file, the Board agrees. Private treatment records show continuous treatment for the Veteran’s residuals of prostate cancer throughout the period at issue. Specifically, they show the Veteran needed to wear absorbent pads which had to be changed frequently during the day. See May 2013 to June 2013 private treatment records; see November 2013 private treatment records; and see November 2014 private treatment records. In his December 2014 Notice of Disagreement, the Veteran reported wearing absorbent materials which must be changed more than four times a day and more than four times at night as a result of his service-connected residuals of prostate cancer. On September 2017 VA examination, it was reported that the Veteran had diagnoses of erectile dysfunction; testis, atrophy, one or both; and prostate surgical residuals. The Veteran’s treatment plan did not include taking continuous medication for the conditions nor had he had an orchiectomy or suffered from any renal dysfunction due to the condition. However, it was noted the Veteran did suffer from voiding dysfunction and urine leakage which required absorbent materials that had to be changed less than 2 times per day. The voiding dysfunction did not require the use of an applicant but did cause nighttime awakening to void 5 or more times. Additional signs of obstructed voiding included hesitancy, slow stream and weak stream. At the January 2018 Board hearing, the Veteran testified that he suffered from incontinence and erectile dysfunction as a result of his residuals from prostate cancer. He indicated these symptoms had become more frequent and reported having to wear a pad that he changed several times a day. He also reported not being able to go anywhere for a long period of time or being away from a bathroom because he needed to stop and change his pad. He estimated he used about 4 pads daily and noted that at night, he would need to go to the bathroom several times. See January 2018 Hearing Transcript. On August 21, 2019 VA examination, it was reported the Veteran had diagnoses of urinary continence and prostatectomy. The examiner also indicated the Veteran had a voiding dysfunction which required absorbent material which must be changed more than 4 times per day. The voiding dysfunction required the use of an appliance. Daytime voiding interval was between 1 and 2 hours and nighttime awakening to void was 3 to 4 times. There were no signs or symptoms of obstructed voiding and no history of recurrent symptomatic bladder or urethral infections. There was also no signs or symptoms attributable to a bladder fistula, urethral fistula or neurogenic or dysfunctional bladder. Another October 2019 VA examination diagnosed the Veteran with prostate cancer, erectile dysfunction and continuous leakage following radical prostatectomy. The examiner noted the Veteran had urinary incontinence which required absorbent material which must be changed more than 4 times per day but did not require the use of an appliance. Daytime voiding was again noted to be between 1 and 2 hours and nighttime voiding was 5 or more times. Hesitancy, slow stream, weak stream and decreased force of stream were all noted as signs and symptoms of the obstructed voiding. In this case, prior to August 21, 2019, there is contradictory evidence regarding the frequency in which the Veteran needed to change his absorbent materials. The Board acknowledges that during the September 2017 VA examination, it was reported that the Veteran required changing his absorbent materials less than 2 times per day. However, it was also reported that his voiding dysfunction caused him to awake at night 5 or more times to void. Additionally, the Veteran has consistently reported throughout the appeal period that he needs to change his absorbent materials more than four times per day. Notably, at the January 2018 Board hearing, the Veteran questioned the medical results from the September 2017 examination, indicating that he felt the examination was rushed and he was “very disappointed in the doctor”. Therefore, affording the Veteran the benefit of the doubt, the Board finds the criteria for a 60 percent rating has been met for the entire period at issue. See 38 C.F.R. § 4.115a. (Continued on the next page)   As for whether a rating higher than 60 percent is warranted for the Veteran’s residuals of prostate cancer, as previously outlined, a 60 percent disability rating for voiding dysfunction is the maximum schedular rating available absent evidence of renal dysfunction, which the Veteran is not shown to have. The evidence does not show nor has the Veteran argued entitlement to an extraschedular rating. In fact, in an April 2020 correspondence, the Veteran’s representative indicated that the Veteran would be satisfied with the award of a 60 percent disability rating for the entire period on appeal. For these reasons, the Board finds that a disability rating of 60 percent for the Veteran’s service-connected residuals of prostate cancer is warranted for the entire period at issue, but not higher. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.