Citation Nr: 20042697 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-59 739 DATE: June 24, 2020 ORDER Entitlement to an initial compensable rating for prostate cancer prior to March 22, 2017 is denied. Entitlement to an initial rating higher than 40 percent for prostate cancer since March 22, 2017 is denied. FINDING OF FACT 1. The Veteran’s prostate cancer has been in remission for the entire appeal period, and has not required surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. 2. Prior to March 22, 2017, residuals of prostate cancer were not manifested by renal or voiding dysfunction. 3. Since March 22, 2017, prostate cancer is not manifested by urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. CONCLUSION OF LAW 1. The criteria for entitlement to an initial compensable rating for prostate cancer prior to March 22, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.115(a), Diagnostic Code (DC) 7528 (2019). 2. The criteria for entitlement to an initial rating higher than 10 percent for prostate cancer since March 22, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.115(a), DC 7528 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1965 to September 1969. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In an October 2016 rating decision, the AOJ granted service connection for residuals of prostate cancer and assigned a 0 percent rating, effective July 20, 2016. The rating was based on the status of prostate cancer being in remission and the absence of other symptoms necessary to warrant a compensable rating. By way of a March 2018 rating decision, the Veteran was assigned an increased rating of 40 percent for his prostate cancer, effective March 22, 2017. The Veteran appeals the initial ratings assigned. The Veteran’s prostate cancer is rated under DC 7528, covering malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, DC 7528. Under DC 7528, a rating of 100 percent is warranted for a malignant neoplasm. Id. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. 38 C.F.R. § 4.115b, DC 7528, Note. Any change in evaluation based upon that or any subsequent examination is then subject to the provisions governing a reduction in disability rating. Id. If there is no local reoccurrence or metastasis, the disability should be rated on residuals as voiding or renal dysfunction, whichever is predominant. Id. 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). The Veteran was diagnosed with prostate cancer in 2001. He underwent brachytherapy (seed implant) in December 2001. The preponderance of the competent evidence of record reflects that, for the entire appeal period, the Veteran’s prostate cancer has been in remission and has not required surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. The Board observes that the Veteran’s clinic records reflect recurrent monitoring of prostate-specific antigen (PSA) levels and that his prostate cancer has been described as stable. The Board remanded this claim, in part, as a December 2017 VA checked a box for indicating an “Active” status of prostate cancer, but also commented that the Veteran was current in watchful waiting status. A December 2019 VA examiner clarified that the Veteran has been in remission since 2001 with no further treatment or recurrence. On the overall record, the Board finds that the December 2017 impression holds little probative value as the findings were internally inconsistent and the “Active” finding appears to have been an error. The overwhelming competent evidence shows that the Veteran’s prostate cancer has been in remission for the entire appeal period. The Veteran was service-connected for prostate cancer, effective July 20, 2016. As such, the criteria for a 100 percent rating, as well as the due process provisions of 38 C.F.R. § 3.105(e), are not applicable. As there is no local reoccurrence or metastasis of the prostate cancer, the Board will consider whether a higher rating is warranted based on the residuals of voiding or renal dysfunction pursuant to the provisions of 38 C.F.R. § 4.115a. As explained below, the Veteran does not allege and the evidence not show renal dysfunction, thus the predominant residual in this case is voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than two times per day merits a 20 percent disability rating. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, a 40 percent rating is warranted. The maximum rating of 60 percent is warranted when there is urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A higher rating may not be awarded for prostate cancer residuals unless there is evidence of significant renal dysfunction. 38 C.F.R. § 4.115a. Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating. A daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115(a). Obstructive voiding symptomatology with marked obstructive symptomatology with any one or combination of: post-void residuals greater than 150 cc, a markedly diminished peak flow rate of less than 10 cc/sec, recurrent urinary tract infections secondary to obstruction, or stricture disease requiring periodic dilation every two to three months, warrants a 10 percent rating. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115(a). Urinary tract infection where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management warrants a 30 percent rating. 38 C.F.R. § 4.115(a). The Veteran underwent a VA examination in July 2016. During this examination, it was noted that the Veteran was diagnosed with prostate cancer in 2001 and that he was treated with brachytherapy. There was no documented recurrence and the Veteran was no longer followed by an urologist. The examiner reviewed the claims file and obtained a medical history of the Veteran’s prostate cancer. The examiner concluded that the Veteran’s prostate cancer was currently in remission and there was no documented recurrence. Examination revealed that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infection, renal dysfunction due to condition and/or voiding dysfunction. The Veteran also did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. A review of the lay statements and outpatient treatment records prior to March 22, 2017 did not reflect any report or treatment for voiding dysfunction. The Veteran filed a Notice of Disagreement on March 22, 2017, but did not discuss the specifics of his voiding intervals. He also attached medical records which did not discuss the specifics of his voiding intervals. In the December 2017 VA Form 9, however, the Veteran reported argued that his Statement of the Case (SOC) listed two symptoms which fell under the 10 percent category - that he had symptoms of frequent voiding two times per night and daytime voiding every two to three hours. During the December 2017 VA examination, the Veteran reported voiding dysfunction. Diabetes mellitus and benign prostatic hypertrophy s/p TURP were noted as the etiology of the voiding dysfunction. The voiding dysfunction caused urine leakage but it did not require the wearing of absorbent material nor did it require the use of an appliance. The voiding dysfunction caused increased urinary frequency which included daytime voiding interval less than 1 hour and nighttime awakening to void 2 times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding and there were no other obstructive symptoms. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections and there was no renal dysfunction due to condition. The Veteran did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. During the September 2019 VA examination, it was noted that the Veteran had no evidence of kidney disease. It was noted that in the May 2016 examination the examiner checked diabetic nephropathy but this appears to have been in error. The examiner found there has been no diagnosis of any form of kidney disease and no lab indications of renal dysfunction and no proteinuria. The Veteran did not have renal dysfunction and/or recurrent symptomatic urinary tract or kidney infections. The December 2019 VA examination disclosed that the Veteran’s prostate cancer was in remission. The Veteran had voiding dysfunction that cause increased urinary frequency to include daytime voiding interval between 1 and 2 hours and nighttime awakening to void 2 times. Voiding dysfunction did not cause urine leakage or cause signs or symptoms of obstructed voiding, and it did not require the use of an appliance. There were no other obstructive symptoms. The Veteran did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer, and/or renal dysfunction due to condition. The VA examiner stated that prostate cancer has been in remission since treatment in 2001 and that the Veteran has had no further treatment and no recurrence. The examiner noted that the Veteran had voiding dysfunction with frequency during the day every 1-2 hours and nocturia once or twice, and that he does not have renal dysfunction from any cause. He had sexual dysfunction with difficulty attaining erections without medication and he was not able to use medication because of a heart condition. The Board finds against a compensable rating for prostate cancer from July 20, 2016 to March 22, 2017. To that end, during this time, voiding and/or renal dysfunction was not shown by the evidence of record. The Veteran denied this during his 2016 VA examination, and his contemporaneous clinic records contained no report of voiding dysfunction. Thus, there was no lay or medical evidence supportive of a compensable rating. The Board further finds that, since March 22, 2017, the criteria for a rating in excess of 40 percent have not been met. To warrant a rating higher than 40 percent based on voiding dysfunction, the record must show urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. When examined in December 2017, the Veteran was shown to have urine leakage but it did not require the wearing of absorbent material nor did it require the use of an appliance. Examination in December 2019 found voiding dysfunction that did not cause urine leakage and did not require the use of an appliance. Although the Veteran’s voiding dysfunction causes urine frequency, a review of the record discloses that at no time during this appeal the Veteran’s voiding dysfunction has required the wearing of absorbent material or the use of an appliance. Accordingly, a rating higher than 40 percent for prostate cancer under 38 C.F.R. § 4.115a is not warranted. The Board has considered whether any other diagnostic codes would allow for a higher disability rating but has found none. The Board acknowledges the Veteran’s assertions that his disability is more severe than evaluated to include his reports of voiding frequency and functional limitations. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for a higher rating have been met. Notably, the Agency of Original Jurisdiction (AOJ) has awarded a 40 percent rating effective March 22, 2017 which is the date the Veteran submitted a notice of disagreement. The AOJ applied reasonable doubt by attributing his NOD as demonstrating the onset of compensable voiding symptoms. The Board cannot factually ascertain that the Veteran manifested any voiding abnormalities prior to March 22, 2017. In this respect, the Veteran specifically denied voiding frequency during his 2016 examination and the Board finds no reason to doubt the credibility of his reports at that time. He has not argued that the examiner erred in recording his statement, that he misunderstood the questions asked, or that his symptoms first reported in December 2017 had been present prior to March 22, 2017. In other words, there is no lay or medical evidence establishing voiding dysfunction prior to the effective date of March 22, 2017 assigned by the AOJ. Lastly, the Board notes that an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. It has not been alleged, however, nor does the record show that his disability renders him unemployable. Thus, the Board concludes that the issue of entitlement to TDIU has not been reasonably raised by the record. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.