Citation Nr: 20041364 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 16-37 067 DATE: June 17, 2020 ORDER Entitlement to a rating in excess of 20 percent for residuals of prostate cancer from September 1, 2015 to October 15, 2015 is denied. Entitlement to a rating in excess of 40 percent for residuals of prostate cancer since October 16, 2015 is denied. REMANDED Entitlement to a compensable rating for erectile dysfunction (ED) also associated with the prostate cancer, so another residual, is remanded. FINDINGS OF FACT 1. For the initial period at issue from September 1, 2015 to October 15, 2015, the Veteran’s prostate cancer residuals consisted of daytime voiding with intervals between one and two hours or awakening to void three to four times per night. 2. Since October 16, 2015, his prostate cancer residuals have consisted of daytime voiding interval less than one hour or awakening to void five or more times per night. CONCLUSIONS OF LAW 1. From September 1, 2015 to October 15, 2015, the criteria are not met for a rating in excess of 20 percent for the residuals of the prostate cancer. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. Since October 16, 2015, the criteria are not met for a rating in excess of 40 percent for the residuals of the prostate cancer. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to September 1969. This appeal to the Board of Veterans’ Appeals (Board) originated from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reduced the rating for the Veteran’s prostate cancer residuals from 100 to 20 percent prospectively effective as of September 1, 2015. In November 2018, the Board remanded the claim for further development – including especially to obtain all outstanding treatment records and to have the Veteran reexamined to reassess the severity of the residuals of his prostate cancer. And, except for concerning his consequent ED, those remand instructions since have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). An April 2020 RO rating decision since issued, on remand, increased the rating for the prostate cancer residuals from 20 to 40 percent retroactively effective as of October 16, 2015. So this appeal now concerns whether a rating higher than 20 percent was warranted prior to October 16, 2015 (meaning from the time of cessation of the prior 100 percent rating on September 1, 2015 until October 15, 2015) and whether a rating higher than 40 percent has been warranted since October 16, 2015. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. When evaluating the severity of a disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has 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). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In general, 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's prostate cancer residuals have been evaluated pursuant to DC 7528. A 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disorder should be rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. The evidence of record shows the Veteran's prostate cancer is in remission and that there has been no local recurrence or metastasis since July 2013, hence, essentially the reason the RO reduced the rating for it as mandated by DC 7528. When remanding this claim in November 2018 to have him undergo another VA examination reassessing the severity of this service-connected disability, the Board explained that there had been the required provision of the notice contemplated by 38 C.F.R. § 3.105(e) in terms of apprising him that his rating for this disability would be reduced and giving him opportunity to contest the reduction and show it was not warranted. Moreover, since the applicable code (DC 7528) mandated the reduction in rating after a certain amount of time, and assuming certain conditions were met, the regular rating reduction rules do not apply. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code involved contained a temporal element for that 100 percent rating). The medical evidence of record is clear that the predominant manifestation, i.e., residual of the Veteran's prostate cancer is voiding dysfunction. With regards to renal dysfunction, a 30 percent 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 DC 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for renal dysfunction when it results in persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. There is no medical evidence of record showing the Veteran suffers from any of these symptoms to a compensable degree. There is no albuminuria or persistent edema, no shown decrease in kidney function, no measure of diastolic blood pressure predominantly at 120 or more, no abnormal BUN or creatinine measurements, no shown generalized poor health as described above, he does not require dialysis, and he is not limited to sedentary activity. As such, he is not entitled to a higher rating based on renal dysfunction, and this decision therefore will discuss the relevant rating criteria concerning, instead, voiding dysfunctions. The Board recognizes that he has hypertension, however, the medical evidence does not show that it has manifested to a compensable degree under the guise of renal dysfunction. Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Urinary frequency involving daytime voiding intervals between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent rating, the maximum allowable rating under urinary frequency. A rating in excess of 40 percent due to urinary frequency is not available under the law. Id. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. The evidence of record does not show that the Veteran requires intermittent, or any, use of a catheter. Thus, a higher rating under obstructed voiding will not be discussed in this decision. Concerning urine leakage, a 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A (maximum) 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day is required. Id. 1. Entitlement to a rating in excess of 20 percent for the residuals of the prostate cancer from September 1, 2015 to October 15, 2015 As explained, for a rating higher than 20 percent for residuals of prostate cancer to be warranted for a voiding dysfunction, the evidence of record must show that the Veteran has daytime voiding intervals less than one hour or awakening to void five or more times per night. A higher rating is also available due to urine leakage, however, the medical evidence of record does not show that he wears any absorbent materials, which is a requirement for even a 20 percent rating if based on urine leakage. Id. By way of history, the Veteran’s prostate cancer was found to be in remission as of July 2013. The rating for his prostate cancer was then reduced, as a matter of law, prospectively effective as of September 1, 2015. VA treatment records from October 2, 2015, so not very long thereafter, show that the Veteran presented for a routine primary care visit. During this visit he conceded that he was not having any issues with voiding. He did mention that he was stressed due to his ED, which is another residual or complication of his prostate cancer, but he did not further mention urinary frequency or any other related issues. The Veteran already has been separately service connected for the ED associated with his prostate cancer throughout this entire period on appeal. And, although he has a 0 percent (noncompensable) rating for his ED, he receives a higher rate of monthly compensation (i.e., special monthly compensation (SMC)) for his ED owing to loss of use of a creative organ. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). There is not additional evidence of record showing that, for the period from September 1, 2015 to October 15, 2015, the Veteran had daytime voiding with intervals of less than one hour or awakening to void five or more times per night. Consequently, for this initial period at issue, a rating higher than 20 percent for the residuals of his prostate cancer is not warranted. 2. Entitlement to a rating in excess of 40 percent for the residuals of the prostate cancer since October 16, 2015 On October 16, 2016, VA received a note from the Veteran’s private doctor stating, “[a]s a result of his treatment [for prostate cancer], he has increased urinary frequency and nocturia, and has lost erectile function.” While this letter is dated September 24, 2015, again, VA did not receive the letter until October 16, 2015 and the earlier dated medical evidence of record from just prior, on October 2, 2015, shows that he was not yet complaining of issues with urinary frequency. It appears this letter received on October 16, 2015 was interpreted by the RO as indication of a worsening of the Veteran’s disability and, as such, a higher 40 percent rating was awarded effective October 16, 2015. This letter states only that he had increased urinary frequency; it does not specify to what extent or provide indication of the actual amount of urinary frequency in terms of how often it occurred and how long it lasted. On his August 2016 VA Form 9, Substantive Appeal to the Board, the Veteran included a written log of his urinary frequency over three consecutive days in July 2016. On the first day, he reported going to the bathroom 22 times. On the second day, he reported going to the bathroom 21 times. On the third day, he reported going to the bathroom 20 times. This represents a drastic increase in his urinary frequency. A December 2016 VA treatment record shows the Veteran was stressed due to his urinary frequency, although this record did not indicate how often he needed to use the restroom. A June 2019 VA treatment record shows the Veteran stated he had “extreme urinary frequency and urgency” and that he reported nocturia, waking to use the bathroom, two to three times per night. In November 2019, the Veteran underwent another VA examination to reassess the severity of his prostate cancer residuals. The examiner confirmed that the Veteran’s prostate cancer residuals continue to manifest as a voiding dysfunction. He reported that he had no urinary leakage, did not require the use of an appliance, had no obstructed voiding, no history of recurrent urinary tract or kidney infections, no retrograde ejaculation, and no other residual complications or conditions. He further reported that he had urinary frequency of daytime voiding intervals of less than one hour and nighttime awakening to void twice per night. For this succeeding period from October 16, 2015 onwards, the Veteran already has the highest possible schedular rating of 40 percent available for urinary frequency. 38 C.F.R. § 4.115a. Thus, a higher schedular rating is only available, instead, under DC 7528 for urine leakage. Id. However, the record does not reflect that he requires the use of any appliance or absorbent materials, and even he has conceded and acknowledged that he does not. This being the case, entitlement to a rating higher than 40 percent for the residuals of the prostate cancer since October 16, 2015 is denied. REASONS FOR REMAND Entitlement to a compensable rating for the ED that is additionally associated with, so another residual of, the prostate cancer is remanded. Throughout the pendency of this appeal, the Veteran has contended that his ED is worse than contemplated by his current 0 percent, or noncompensable, rating. Since his ED is a residual of his prostate cancer, the Board’s November 2018 remand included a directive for a VA examiner to reassess the severity of the ED, including specifically in terms of whether there is any internal or external physical deformity due to the ED since he already is receiving SMC for the loss of erectile power caused by the ED. In Williams v. Wilkie, 30 Vet. App. 134, 138 (2018), the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) clarified that, "[a]lthough DC 7522 requires a 'deformity' for a compensable rating, VA has not expressly defined this term." The Court defined 'deformity' as a "distortion of any part or general disfigurement of the body," to include internal and external deformities. Id (citing Dorland's Illustrated Medical Dictionary 478 (32d ed. 2012). But, in this instance, the evidence did not indicate whether there were any internal or external deformities of this contemplated type, thus, the reason the Board directed the agency of original jurisdiction (AOJ), i.e., RO obtain medical opinion concerning this when remanding the claim in November 2018. A review of the record, however, shows that the November 2019 VA examiner conducted a file review and phone interview of the Veteran, which means there was no actual physical examination of him to determine whether he has the required internal or external penile physical deformity required for a higher, i.e., compensable rating, that is, apart from his SMC. As an unfortunate consequence, there has not been the required compliance with this remand directive, so the Board must correct this failing. Stegall v. West, 11 Vet. App. 268, 271 (1998).   Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an in-person examination by an appropriate clinician to reassess the severity of his service-connected ED – particularly in terms of whether there is an internal or external physical penile deformity owing to this service-connected disability. To this end, the examiner must provide a full description of this disability and report all signs and symptoms attributable to it necessary for evaluating it under the applicable rating criteria. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.