Citation Nr: A20009042 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 190913-35069 DATE: May 20, 2020 ORDER Entitlement to an increased rating for residuals of prostate cancer with posterior urethral stricture and urinary urgency, rated as 20 percent from January 1, 2017, and rated as 40 percent from July 6, 2017, is denied. FINDINGS OF FACT 1. The record evidence establishes that the Veteran has a baseline pre-aggravation degree of severity to warrant a 20 percent rating, which is to be deducted from the current degree of severity of the ratable residuals due to his prostate cancer. 2. From January 1, 2017, the Veteran’s residuals of prostate cancer with posterior urethral stricture and urinary urgency more nearly approximate daytime voiding intervals less than one hour or nighttime awakening to void two times per night. 3. From July 6, 2017, the Veteran’s residuals of prostate cancer with posterior urethral stricture and urinary urgency more nearly approximate his required use of an appliance. CONCLUSION OF LAW The criteria for entitlement to an increased rating for residuals of prostate cancer with posterior stricture and urinary urgency, rated as 20 percent from January 1, 2017, and rated as 40 percent from July 6, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.310(b), 4.1, 4.3, 4.7, 4.22, 4.115a-b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This law went into effect in February 2019. Before then, the Veteran chose to participate in the VA’s test program, RAMP, the Rapid Appeals Modernization Program. The Board is honoring the Veteran’s choice. The Veteran served on active duty in the United States Army from February 1969 to October 1970. The Veteran elected the Supplemental Claim lane when he submitted the RAMP election form in December 2018. The Agency of Original Jurisdiction (AOJ) issued a RAMP rating decision in August 2019. The Veteran filed a VA Form 10182, Decision Request Review: Board Appeal (Notice of Disagreement (NOD)) in September 2019, requesting direct review by a Veterans Law Judge. Despite selecting this appeal lane, evidence was submitted in February 2020, which was during a period when new evidence was not allowed. Therefore, the Board may not consider this evidence. See Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, § 2(w)(1), 131 Stat. 1105, 1114 (2017). The Veteran may file a Supplemental Claim and submit or identify this evidence. See § 2(i)(1), 131 Stat. at 1109. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an increased for residuals of prostate cancer with posterior urethral stricture and urinary urgency, rated as 20 percent from January 1, 2017, and rated at 40 percent from July 6, 2017. Disability ratings are determined by the applying the criteria set forth in VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disabilities resulting from all types diseases and injuries encountered as result of, or incident to military service. The ratings are intended to compensate, as far as can practically be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; see also 38 C.F.R. § 4.1. When a question arises as to which of two ratings shall be applied in adjudicating a claim for an increased rating, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board notes that in analyzing the following claims made by the Veteran, the Secretary, and therefore the Board, has an obligation to provide the Veteran with the “benefit of the doubt” on any questions material these decisions for which there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends that he is entitled to ratings higher than currently assigned for his residuals of prostate cancer. He disagrees with the 20 percent baseline deduction from the present degree of severity of his residuals of prostate cancer with posterior urethral stricture and urinary urgency. He asserts that his preexisting voiding dysfunction was the start of his prostate cancer. See September 2019 NOD. Additionally, to support his claim for increase, the Veteran asserts that he has an average of 257 catheters a month, uses 185 depends with 30 depends liner, and has had three urinary tract infections (UTIs) since December 2018. See September 2019 NOD. Considering the baseline deduction first, the record evidence reflects that service connection for prostate cancer and its residuals was awarded in part based on the aggravation of a condition that existed prior to the Veteran’s diagnosis of prostate cancer. Regarding this matter, the Board notes that the evidence supports that the Veteran’s preexisting condition included the diagnosis of a voiding dysfunction due to prostate hypertrophy and benign prostrate hyperplasia. The record evidence reveals that the Veteran was diagnosed and treated for a voiding dysfunction at least since December 2010. In January 2011, the Veteran underwent a cysto and transurethral resection of the prostate (TUR-P), with prostate biopsy, for an enlarged prostate. The tissue pathology was benign, although with some suspicious looking tissue, but was negative for malignancy (i.e., prostate cancer). See October 2011, VA Primary Care Clinic Entry; December 2015, Evansville CBOC Entry; February 2016, Owens Health Regional Hospital (medical notes from the treating oncologist, Dr. Ross). The December 2015 Disability Benefit Questionnaires (DBQs), prepared by Dr. Ross (the Veteran’s treating oncologist), reveal diagnoses of prostate hypertrophy, prostate hyperplasia, and voiding dysfunction in December 2010. At that time, Dr. Ross noted that the etiology of the Veteran’s voiding dysfunction was an enlarged prostate (prostate hypertrophy) and an elevated PSA. Dr. Ross noted that the Veteran did not have malignant neoplasm or metastases related to the diagnoses of prostate hypertrophy, prostate hyperplasia, and voiding dysfunction, and that the Veteran had no residual or complication due to neoplasm. Dr. Ross reported on the DBQs that the Veteran had a daytime voiding interval of 1 to 2 hours and a nighttime awakening to void 3 to 4 times per night. See December 2015 DBQ (Urinary Tract Infection Conditions); December 2015 DBQ (Male Reproductive Organ Conditions). This evidence shows that these symptoms of voiding dysfunction approximate the level of severity to warrant a 20 percent rating on or before December 2015. See 38 C.F.R. §§ 3.310(b), 4.115a-b, Diagnostic Code 7528. Additionally, this evidence also shows that the Veteran presented with a voiding dysfunction due to benign prostatic hypertrophy, and that he was not diagnosed with prostate cancer at the time of the 2015 DBQs, or during the five years prior to December 2015. A February 2016 private discharge summary referred by history that the Veteran underwent a TUR-P for purely benign prostatic tissue several years ago (in 2011), and that his PSA had stayed low until recently. A second TUR-P, with biopsy, was performed in February 2016, per recurrent prostatic hyperplasia with increasing urinary outlet obstruction symptoms and elevated PSA. The pathology of the tissue biopsy revealed prostate adenocarcinoma, for which the Veteran received radiation therapy. The March 2017 VA (DBQ) examiner determined based on the evidence discussed above that the Veteran’s voiding dysfunction was a preexisting condition not caused by his prostate cancer. According to the VA examiner, after diagnosis and treatment of the prostate cancer, the preexisting voiding dysfunction was aggravated beyond its natural progression. See March 2017 VA Report of Examination (DBQ for Prostate Cancer). Thus, pursuant to 38 C.F.R. § 3.310(b), the Board finds that the medical evidence on file before and after the Veteran’s diagnosis of prostate cancer in 2016 supports finding that the Veteran showed symptoms of a voiding dysfunction not caused by or related to, but existed prior to, his diagnosis and treatment for prostate cancer. These symptoms revealed a baseline pre-aggravation degree of severity to warrant a 20 percent rating, which, by law, must be deducted from the current level of severity of the ratable residuals due to his prostate cancer. 38 C.F.R. §§ 3.310(b), 4.115a-b, Diagnostic Code 7528. Hence, the Board finds that the Veteran’s allegation to the contrary is unavailing. Considering next the claim for increase, the record evidence reflects the Veteran was diagnosed with prostate cancer in February 2016. He received radiation therapy, beginning in April 2016, and ending in June 2016. Further, as the evidence shows that the Veteran received no chemotherapy or other therapeutic procedure for prostate cancer after the radiation treatment ended in June 2016, and the March 2017 VA (DBQ) examination revealed no active cancer, effective December 31, 2016, the AOJ appropriately discontinued the 100 percent rating, and rated the Veteran on the basis of the residuals due to his prostate cancer, as directed by 38 C.F.R. § 4.115b, Diagnostic Code 7528. See also 38 C.F.R. § 4.22 (If the current degree of severity is total (100 percent), no deduction of the baseline pre-aggravation degree of severity will be made). [Parenthetically, the Board notes that the regulatory provisions normally applicable to reduction from 100 percent, and for rating reductions in general, are not applicable where, as here, the reduction is mandated by expiration of a time period set forth in the rating schedule. See Rossiello v. Principi, 3 Vet. App. 430 (1992); cf. 38 C.F.R. §§ 3.342, 3.344.] The Veteran is currently rated 20 percent from January 1, 2017, and is rated 40 percent from July 6, 2017, for his residuals of prostate cancer with posterior urethral stricture and urinary urgency. In this case, the 20 percent and 40 percent ratings, respectively, were the result of the deduction of a 20 percent baseline pre-aggravation degree of severity from the current degree of severity of the Veteran’s prostate cancer and its residuals at the time. See 38 C.F.R. §§ 3.310(b), 4.115a-b, Diagnostic Code 7528. Diagnostic Code 7528 provides that if there has been no local reoccurrence or metastasis, then the Veteran’s residuals are to be rated under the criteria for voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115(b), Diagnostic Code 7528. Voiding dysfunction is based on urine leakage and provides a 20 percent rating for when the disability requires that absorbent materials must be changed less than 2 times per day. A 40 percent rating is warranted when the disability requires that absorbent materials must be changed 2 to 4 times per day. A maximum 60 percent rating is warranted when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent rating is warranted for either a daytime voiding interval between 2 and 3 hours or awakening to void 2 times per night. A 20 percent rating is warranted for either a daytime voiding interval between 1 and 2 hours or awakening to void 3 to 4 times per night. A maximum 40 percent rating is warranted for either a daytime voiding interval of less than 1 hour or awakening to void 5 or more times per night. Id. As for the period starting July 6, 2017, VA and private treatment records and examination reports, dating from December 2015 to May 2019, reflect that the Veteran’s predominant disability is a voiding dysfunction based on symptoms of urine leakage and incontinence, which requires the use of an appliance, and is consistent with the criteria of a 60 percent rating, starting July 6, 2017. See July 6, 2017, DBQ Prostate Cancer (voiding dysfunction requires the use of an appliance); June 6, 2019, DBQ Prostate Cancer (voiding dysfunction is predominant disability; requires use of an appliance; intermittent catheterization due to urethral stricture); May 2019, VA Outpatient Treatment Record (self-catheterization multiple times per day). However, because the Veteran has preexisting symptomatology of a voiding dysfunction that more nearly approximates the criteria of a 20 percent rating, before the Veteran was diagnosed and treated for prostate cancer, the 20 percent rating (for the preexisting baseline degree of severity) must be deducted from the 60 percent rating (for the current degree of severity) to warrant a 40 percent rating from July 6, 2017, based on the record evidence. See 38 C.F.R. §§ 3.310(b), 4.115a-b, Diagnostic Code 7528. As for the period starting January 1, 2017, VA and private treatment and examination reports, dating from December 2015 to July 2017, reflect that the Veteran’s predominant disability is a voiding dysfunction based on symptoms of urine leakage and incontinence, which requires that he daytime void in intervals of less than 1 hour and awaken at nighttime to void 2 times per night, and is consistent with the criteria for a 40 percent, the period starting January 1, 2017, ending July 5, 2017. See May 2017, DBQ Prostate Cancer (voiding dysfunction that results in daytime voiding interval less than 1 hour and nighttime awaking to void 2 times per night). However, because the Veteran has preexisting symptomatology of a voiding dysfunction that more nearly approximates the criteria of a 20 percent rating, before his diagnosis and treatment for prostate cancer, the 20 percent rating (for the preexisting baseline degree of severity) must be deducted from the 40 percent rating (for the current degree of severity) to warrant a 20 percent rating from January 1, 2017 to July 5, 2017, based on the record evidence. See 38 C.F.R. §§ 3.310(b), 4.115a-b, Diagnostic Code 7528. Additionally, in applying the baseline deduction of 20 percent to other potentially ratable criteria, the evidence shows that the Veteran required the use of absorbent material that must be changed less than 2 time per day, which would have entitled the Veteran to a noncompensable rating. The evidence shows that the Veteran required dilatation once or twice a year for stricture, would have entitled the Veteran to a noncompensable rating. The evidence also shows a weak stream and weak force of stream, which would have likewise entitled the Veteran to a noncompensable rating. December 2015, DBQ Urinary Tract Infection Conditions; December 2015, DBQ Male Reproductive Conditions; March 2017, VA (DBQ) Prostate Cancer Conditions; July 2017, VA (DBQ) Prostate Cancer Conditions; August 2017, DBQ Prostate Cancer Condition; June 2019, VA (DBQ) Prostate Cancer Conditions. As such, the highest assignable rating based on these potentially applicable criteria is a noncompensable (zero percent) rating and thus would not represent the predominant disability for the ratable residuals under Diagnostic Code 7528. See 38 C.F.R. §§ 3.310(b), 4.115a-b, Diagnostic Code 7528. Lastly, the Veteran has not been found to have renal dysfunction or any of the applicable symptoms. Moreover, the March 2017, July 2017, and June 2019 VA (DBQs) examiners did not detect the presence of any kidney symptoms or any noted signs of renal infection or dysfunction. Hence, an increased rating, which would include the baseline deduction of 20 percent, is not warranted. Accordingly, the Board finds that the record evidence is sufficient to establish the Veteran’s disability picture more closely approximates daytime voiding intervals less than 1 hour or nighttime awakening to void 2 times per night from January 1, 2017; and more closely approximates required use of an appliance from July 6, 2017. Therefore, as voiding dysfunction based on urine leakage and incontinence is the predominant disability, an increased rating for residuals of prostate cancer with posterior urethral stricture and urinary urgency, rated as 20 percent from January 1, 2017, and rated as 40 percent from July 6, 2017, based on the deduction of the 20 percent baseline pre-aggravation degree of severity from the current degree of severity, is denied. See 38 C.F.R. §§ 3.310(b), 4.22, 4.115a-b, Diagnostic Code 7528. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zigan Danklou 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.