Citation Nr: 20041764 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 17-04 116 DATE: June 18, 2020 ORDER Entitlement to an initial rating higher than 60 percent for residuals of prostate cancer effective February 1, 2016, is denied. FINDING OF FACT The predominant residual of the Veteran’s residuals of prostate cancer is voiding dysfunction, which is assigned the maximum schedular rating available. CONCLUSION OF LAW The criteria for an initial rating higher than 60 percent for residuals of prostate cancer have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115(a), 4.115(b), Diagnostic Codes 7527. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1959 to December 1968. In the August 2018 remand, the Board indicated that the issues on appeal were the propriety of the rating reduction for service-connected residuals of prostate cancer from 100 percent to 60 percent, effective February 1, 2016, and entitlement to an increased rating in excess of 60 percent for residuals of prostate cancer, effective February 1, 2016. However, the Board determined that the Veteran did not appeal the matter of the cessation of the 100 percent rating for prostate cancer, and has not otherwise alleged that his prostate cancer has recurred. Accordingly, the Board found that the instant appeal arose out of the rating assigned to the residuals of prostate cancer in the December 2015 rating decision. Entitlement to an initial rating higher than 60 percent for residuals of prostate cancer effective February 1, 2016. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In addition, separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” regardless whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected residuals of prostate cancer have been rated under Diagnostic Code 7527. See 38 C.F.R. § 4.115(b). Under Code 7527, prostate gland injuries, infections, hypertrophy and postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115(a) provides that voiding dysfunction is rated as urine linkage, frequency, or obstructed voiding. A 10 percent rating is assigned for disability manifested by daytime voiding interval between two and three hours, or; awakening to void two times per night or marked obstructive symptomatology with any one or combination of the following: post void residuals greater than 150 cc, uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction and stricture disease requiring periodic dilatation every 2 to 3 months. A 20 percent rating is assigned for disability manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed less than 2 times per day; or, daytime voiding interval between one and two hours, or, awakening to void three to four times per night. A 30 percent rating is assigned for disability manifested by urinary retention requiring intermittent or continuous catheterization. A 40 percent rating is assigned for disability manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; or, daytime voiding interval less than one hour, or; awakening to void five or more times per night. A maximum 60 percent rating is assigned for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. 38 C.F.R. § 4.115(a) provides that a 10 percent rating is assigned for urinary tract infection manifested by long-term therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is assigned for urinary tract infection with recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) an/or requiring continuous intensive management. VA treatment records in March 2016 show that the Veteran did self-catherization multiple times during the night. A November 2016 Report of General Information shows that the Veteran no longer used a catheter but used absorbent material that must be changed more than four times per day. He indicated he still had frequent daytime voiding and five to seven times nightly. A June 2018 Report of General Information shows the Veteran had weak stream and absorbent underwear changes six times per day. On VA prostate examination in August 2018, prostate cancer was in remission. The examiner noted that the Veteran report that he had to go to the bathroom more than 10 times per day and had a little amount. The examiner found that the Veteran had voiding dysfunction due to prostate cancer, which did not cause urine leakage or require the use of an appliance. The examiner found that the voiding dysfunction caused increased urinary frequency with daytime voiding intervals between two to three hours and nighttime awakening to void five or more times. The voiding dysfunction caused symptoms of obstructed voiding to include hesitancy, slow stream, weak stream, and decreased force of stream none of which were marked. The examiner determined that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. He did not have renal dysfunction related to his prostate cancer. Contemporaneous treatment records are consistent with the findings on the August 2018 VA examination. See, e.g., January 2019 treatment records showing nocturia and voiding six to seven times per day. In the instant case, voiding dysfunction is the predominant disability. The competent and probative evidence discussed above shows that the Veteran at most during the appeal period wore absorbent material, which had to be changed more than four times per day. See November 2016 Report of General Information. However, on the August 2018 VA examination the examiner determined that the Veteran had voiding dysfunction due to prostate cancer, which did not cause urine leakage or require the use of an appliance. However, as the Veteran has been assigned the maximum 60 percent schedular rating for the entire period on appeal the Board will not disturb it.   Thus, the preponderance of the evidence is against the claim for an initial rating higher than 60 percent for residuals of prostate cancer effective February 1, 2016, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.