Citation Nr: 20032965 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 18-29 793 DATE: May 12, 2020 ORDER A rating for prostate cancer residuals in excess of 40 percent prior to December 29, 2016, and thereafter in excess of 60 percent is denied. FINDING OF FACT The record reflects the Veteran’s general acknowledgement of the propriety of the reduction of his rating for prostate cancer from total to 40 percent, and the evidence fails to show that any worsening of the prostate cancer residuals reported on December 29, 2016, was any more severe than the Veteran’s voiding dysfunction requiring him to wear and change the absorbent materials from 4 to 6 times per day, or was so exceptional or unusual as to render the schedular criteria inadequate to rate those residuals. CONCLUSION OF LAW The criteria for rating the prostate cancer residuals in excess of 40 percent prior to December 29, 2016, and thereafter in excess of 60 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.115a, 4.115b, DC 7527. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from October 1966 to August 1970. In a February 2016 rating decision, the Regional Office (RO) reduced a rating for prostate cancer from total to 40 percent. The Veteran disagreed with the assigned rating. In an April 2018 rating decision, the RO increased the Veteran’s rating from 40 to 60 percent, effective December 29, 2016. Of note, the rating actions reducing compensation benefits are procedurally and substantively distinct from assigning ratings and thus raise materially different appellate issues. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The RO has properly construed and addressed the Veteran’s disagreement with the February 2016 reduction action. However, as reflected in his substantive appeal (VA Form 9 received in June 2018), the Veteran unequivocally expresses his agreement with the February 2016 rating decision. He then explains that he has filed his Notice of Disagreement (NOD) based on the progressive worsening of his prostate cancer residuals and disagrees only with the RO’s decision insofar as to award a rating at no higher than 60 percent for the period from December 2016 and thereafter. Given this explanation, the Board finds that the Veteran neither is challenging a propriety of the February 2016 RO’s reduction action, nor is seeking a restoration of the previous rating in this appeal. Rather, he is appealing the assigned ratings for his prostate cancer residuals. The Veteran reports that he is “looking” for an 80-100 percent rating based on increased voiding every half hour and an increased use of absorbent pads changed 4-6 times per day. Upon considering the Veteran’s contention, all evidence of record and pertinent laws, the Board finds that his appeal must be denied for the following reasons. The Veteran’s prostate cancer residuals are currently rated at 60 percent under DC 7528 providing for malignant neoplasms of the genitourinary system. Per schedule, prostate cancer postoperative residuals should be rated as prostate gland injuries under the schedule for rating disabilities of the genitourinary system, and DCs are assigned based either on urinary or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7527, 7528, Note. In this case, the record reflects that the Veteran’s prostate cancer is fortunately in remission and without any suggestion of local cancer reoccurrence, metastasis, renal dysfunction, or any manifestation beyond his urinary dysfunction which is unfortunate but is also a common post-prostatectomy complication. Absent any evidence suggesting local cancer reoccurrence, metastasis, or renal dysfunction, rating the Veteran’s prostate cancer residuals based on voiding dysfunction under diagnostic code (DC) 7527 is the most appropriate in this case. Under DC 7527, voiding dysfunctions are rated based on three types of symptom manifestations, namely, urinary leakage, frequency, or obstruction. See 38 C.F.R. § 4.115b. Ratings based on obstruction are capped at 30 percent and ratings based on frequency are capped at 40 percent. Id. The highest possible 60-percent rating for voiding dysfunction based on leakage is assigned when the absorbent materials must be changed more than 4 times per day. As such, the Veteran is currently in receipt of the highest schedular rating for his prostate cancer residuals effectively limited to his voiding dysfunction requiring him wear and change absorbent materials 4-6 time per day, which the Veteran reported on December 29, 2016. Of note, an August 2015 examination report reflects only small amounts of leakage with coughing, sneezing, and lifting or similar activities, which no longer required an incontinent device or appliance. This is consistent with the Veteran’s multiple statements reporting his urinary frequency and small amounts of leakage. Based on this evidence, he was assigned the highest schedular rating at 40 percent based on urinary frequency. On December 29, 2016, the Veteran reported a worsening of him prostate cancer residuals, to include an increased leakage requiring him to wear and change the absorbent materials 4-6 times per day. Based on this new evidence, he was assigned the highest schedular rating at 60 percent from the earliest date permissible by law, that is, the date he reported a worsening of his prostate cancer residuals. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). Rating his voiding dysfunction in excess of 60 percent, which he is seeking in this appeal, requires a consideration on an extraschedular basis. See 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). A referral to the Director of Compensation and pension is warranted only when the extraschedular rating consideration is either expressly raised by the Veteran or reasonably raised by the evidence of record, which entails a multi-step legal analysis. Id. The first fundamental legal criterion is for the Board to determine whether the schedule is inadequate to rate the disability picture on review. See 38 C.F.R. § 3.321(b)(1). This means that the Veteran’s disability picture must be so exceptional or unusual, as shown by such factors as the marked interference with employment or frequent periods of hospitalization, so as to render the schedular criteria impracticable. Id. However, the record is devoid of any evidence that might suggest that this is the case here. Here, the record is devoid of any evidence, to include the Veteran’s treatment records, VA examination, and his own statements, that shows any hospitalizations after his prostatectomy in March 2013. Nor does the evidence reflect such frequent outpatient care visits as to suggest any marked interference with his employment. Rather to the contrary, for example, an August 2015 VA examination report reflects that the Veteran’s prostate cancer is in full remission, while his voiding dysfunction is the only residual and does not affect his ability to work. The Veteran has neither submitted any evidence to the contrary nor alleged otherwise. Rather, as reflected in his January 2017 NOD, the Veteran’s statements are limited to his urinary frequency and leakage, without a hint of any single symptom that is not expressly contemplated by the schedular rating criteria. This does not in any way diminish the severity levels of his prostate cancer residuals, as reflected in his statements that he has to urinate at least four times while walking nine holes on the golf course, plus leakage between urination stops, as well as leaking when sitting on hard surfaces, bending over, and/or exercising, which ultimately requires him to change absorbent pads 4-6 time per day. The Board recognizes the frustration encapsulated in the Veteran’s assertion that he is “just tired of being wet!!”, but it is for this reason that he was assigned the highest schedular rating and the earliest effective date permissible by law. However, the Veteran’s statements do not suggest that this disability picture is not adequately contemplated by the schedular rating criteria, which is the fundamental legal requirement for an extraschedular rating consideration. That is, it cannot be said that his disability picture is so exceptional or unusual, due to such factors as marked interference with employment or frequent periods of hospitalization, so as to warrant a referral to the Director for a consideration of assigning a rating in excess of 60 percent on an extraschedular basis. Ultimately, the schedule clearly contemplates rating the voiding dysfunctions, to include its manifestations such as frequent urination and urinary leakage, while specifically providing for various percentages based on the corresponding severity levels. Having considered all evidence of record, the Board has found no single manifestation of the Veteran’s prostate cancer residuals that are not contemplated by the schedule. As such, a referral to the Director for a consideration of assigning an increased rating on an extraschedular basis is not warranted. Upon finding no legal basis either to assign a higher rating on a schedular basis or to refer the claim for an extraschedular consideration, the Board concludes that the legal criteria to rate the Veteran’s prostate cancer residuals in excess of 40 percent prior to December 29, 2016, and thereafter in excess of 60 percent have not been met. Accordingly, the appeal is denied. Of final note, the Board acknowledges the Veteran’s statements that he would like to have reopened his previously denied claims for service connection for his PTSD and his daughter’s hypochondroplasia. The Veteran may request a readjudication of those claims by submitting a Supplemental Claim supported by new and relevant evidence. See 38 CFR § 3.2501. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, Associate Counsel