Citation Nr: 21000338 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-11 762 DATE: January 5, 2021 ORDER Entitlement to service connection for a kidney condition as secondary to service-connected prostate cancer is granted. Entitlement to a disability rating in excess of 40 percent for residuals of service-connected prostate cancer, claimed as incontinence, is denied. FINDINGS OF FACT 1. The competent and probative evidence of record establishes the Veteran’s kidney condition is etiologically related to his service-connected prostate cancer residuals. 2. The preponderance of the evidence establishes that the Veteran’s service-connected prostate cancer residuals are manifested by urinary frequency involving nighttime awakening to void five or more times, but not by urinary leakage requiring use of an appliance or the wearing of absorbent materials which must be changed more than four times daily. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a kidney condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a disability rating in excess of 40 percent for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.115A, 4.115B, Diagnostic Code (DC) 7528. Introduction The Veteran served honorably on active duty in the United States Marine Corps Reserves during the Peacetime, from August 1962 to February 1963, and in the United States Air Force during the Peacetime and Vietnam Era, from April 1963 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). When this matter came before the Board in July 2020, it was remanded for additional development, specifically, VA examinations. The Board observes that the additional development has been conducted and, following the RO’s issuance of an October 2020 Supplemental Statement of the Case (SSOC) again denying the Veteran’s claims, the matter returns to the Board for further appellate review. Finally, this matter has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson is: (1) competent to identify the medical condition; (2) reporting a contemporaneous medical diagnosis; or, (3) describing symptoms at the time that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. See Gilbert, 1 Vet. App. at 53. The Board has considered the entire record, but only evidence pertinent to the determination of service connection for the claimed conditions will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Increased Ratings Disability ratings are determined by applying a schedule of ratings (Ratings Schedule) that is based on the average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the general rule is that an increase may date back one year prior to the date the claim for increase was filed, “if it is ascertainable that an increase in disability had occurred” within that one-year period. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010) (to obtain an effective date earlier than the date of the claim for an increase, the increase must have occurred during the one year period prior to the date of the claim). Entitlement to service connection for a kidney condition as secondary to service-connected prostate cancer is granted. The Veteran seeks service connection for a kidney condition “related to service and his [p]rostate [c]ancer.” Specifically, the representative contends that “brachytherapy treatment” the Veteran received for service-connected prostate cancer “may cause membranous nephropathy, for which [the Veteran] has a diagnosis.” As support, in March 2020 the representative submitted a medical article, “Membranous Nephropathy and Thrombotic Microangiopathy Secondary to Metastatic Prostate Cancer After Iodine-125 Brachytherapy: A Case Report” that suggests such a causal relationship. The Board observes that the medical evidence, including both VA and non-VA treatment records, references conditions including biopsy-proven membranous nephropathy and stage three chronic kidney disease. In October 2019, a VA treatment note recorded the Veteran’s glomerular filtration rate (GFR) as approximately 45. Pursuant to the Board’s July 2020 remand, the Veteran underwent a VA examination in July 2020. According to the VA examiner, while “VA treatment records did show ‘chronic kidney disease stage 3’ in active problem list put in in 2016,” the examiner noted that, “[t]here has been … no clinical note relating to this problem list that may suggest that the [V]eteran has a kidney dysfunction.” As a result, the VA examiner indicated “[t]here is no pathology to render a diagnosis of kidney dysfunction.” Further, the VA examiner noted that an “[o]pinion relating to kidney dysfunction as secondary to prostate cancer can not [sic] be provided.” However, in September 2020 the same VA examiner did provide such a nexus opinion. According to the VA examiner, it is at least as likely as not that the Veterans kidney condition(s) including, but not limited to, biopsy-proven membranous nephropathy is proximately due to or the result of the Veteran’s service-connected prostate cancer residuals. By way of rationale, the VA examiner noted, inter alia, that “[g]lomerular diseases are associated with many solid and hematological malignancies.” According to the VA examiner, “[d]ifferentiating primary [membranous nephropathy] from secondary [membranous nephropathy] associated with malignancy can be difficult,” and that “suspicion for a secondary glomerular disease should be high in a patient with known cancer who has presence of proteinuria or nephrotic syndrome.” The VA examiner referenced the medical article provided by the Veteran’s representative and stated, “it does contribute to the general acknowledgement about the association of the prostate cancer and [membranous nephropathy].” The Board assigns substantial probative weight to the opinion of the VA medical examiner in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion appears to be based upon a thorough examination of the Veteran, consideration of his self-reports, a review of the claims file, the examiners’ expertise, medical literature, and sound reasoning. Based upon the foregoing, the Board finds that the preponderance of the competent and probative evidence of record establishes the Veteran’s entitlement to service connection for a kidney condition as secondary to service-connected prostate cancer residuals. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to a disability rating in excess of 40 percent for residuals of service-connected prostate cancer, claimed as incontinence, is denied. The Veteran seeks entitlement to an increased rating for residuals of service-connected prostate cancer. DC 7528 is designed to specifically rate malignant neoplasms of the genitourinary system following the cessation of therapeutic treatment. Based on the Note to DC 7528, “[i]f there has been no local reoccurrence or metastasis,” residuals are to be rated “as voiding dysfunction or renal dysfunction, whichever is predominant.” 38 C.F.R. § 4.115A-B. The medical evidence of record establishes that the Veteran’s prostate cancer has been in remission since 2006, and there has been no local recurrence or metastasis. Regarding renal dysfunction, 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. Id. 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. Id. 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. However, the Board observes no medical evidence of record showing that the Veteran suffers from any of the above symptoms to a compensable degree. For example, there is no constant albuminuria with edema, definite decrease in kidney function, or measure of diastolic blood pressure at 120 or more, no persistent abnormal BUN or creatinine measurements, no shown generalized poor health (as described above), the Veteran does not require dialysis, and is not limited to sedentary activity. Laboratory studies revealed normal BUN and creatinine levels during a July 2020 VA examination. The Board recognizes the Veteran reportedly suffers from chronic kidney disease; however, the medical evidence does not show that it has manifested to a compensable degree under renal dysfunction. As such, the Veteran is not entitled to a higher rating based on renal dysfunction, and this decision therefore will discuss the relevant rating criteria concerning, instead, voiding dysfunction. Under the Ratings Schedule, voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115A. To the extent the Veteran’s disability is manifested by a combination of urine leakage, frequency, and obstruction, separate ratings cannot be assigned as only the predominant area of dysfunction is considered for rating purposes. Id. For evaluations based on urine leakage due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. A rating in excess of 40 percent due to urinary frequency, and in excess of 30 percent due to obstructed voiding are not available under the law. Id. As such, because the Veteran cannot receive an increased rating due to either urinary frequency or obstructed voiding, they will not be discussed further in this decision. The Veteran has undergone two VA medical examinations pertinent to this claim, specifically, in September 2018 and July 2020. The September 2018 VA examination report indicates, inter alia, a voiding dysfunction causing urine leakage and requiring absorbent material which must be changed less than twice daily and does not require use of an appliance. According to the VA examination report, there is no renal dysfunction due to the Veteran’s service-connected prostate cancer residuals. Following the Board’s remand in July 2020, the Veteran underwent another VA examination in July 2020. The Veteran complained of, inter alia, urinary frequency and incontinence. According to the VA examiner, the Veteran “was diagnosed with prostate cancer in 2005 and received brachytherapy [in] 2006,” and has remained in remission since. The VA examiner noted a voiding dysfunction causing urine leakage and requiring absorbent material which must be changed less than twice daily and does not require use of an appliance. According to the VA examination report, there is no renal dysfunction due to the Veteran’s service-connected prostate cancer residuals. The Board finds the VA examination report regarding this issue substantially complies with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board assigns substantial probative weight to the opinions of the VA medical examiners in this matter. See Nieves-Rodriguez, 22 Vet. App. at 304. Their opinions appear to be based upon thorough examinations of the Veteran, consideration of his self-reports, a review of the claims file, the examiners’ expertise, and sound reasoning. The Board has also reviewed the Veteran’s VA and non-VA medical treatment records, which do not contradict the findings of the VA examiners in this matter. A July 2018 VA treatment note reports “occassional [sic] urge incontinence,” and that the Veteran “wears depends 2-3/day.” Furthermore, the Board observes that there are no lay statements or statements in support currently of record. The evidence shows the predominant manifestation of the Veteran’s service-connected prostate cancer residuals is a voiding dysfunction, particularly, urinary frequency (i.e., awakening to void five or more times per night). In order to establish entitlement to a disability rating in excess of 40 percent for service-connected prostate cancer residuals, the Veteran must experience urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times daily. 38 C.F.R. § 4.115A. Based upon the VA examiners’ reports and the treatment records, the Veteran does not require use of an appliance and must change absorbent materials less than twice daily (consistent with a 20 percent disability rating for voiding dysfunction). The Veteran’s representative argues a September 2013 VA examiner “incorrectly selected that the requirement to change absorbent material was only 2 to 4 times per day,” resulting in the claim being “incorrectly rated at the time of the original grant.” Once a Rating Decision, such as the October 2013 Rating Decision, becomes final, the Veteran must file a Motion for revision premised upon clear and unmistakable error (CUE) that collaterally attacks the final decision. See Cacciola v. Gibson, 27 Vet. App. 45 (2014); Rudd v. Nicholson, 20 Vet. App. 290 (2006). The Board observes that no such Motion is of record here. Absent CUE, a previous final and binding Rating Decision will be accepted as correct. Finally, the Board has also considered whether additional staged ratings are in order. See Hart, 21 Vet. App. 505. However, the Board finds that such additional staged ratings are not warranted for any distinct periods of time during the period on appeal. (Continued on the next page)   Based upon the foregoing, the Board finds that the preponderance of the competent and probative evidence is against the Veteran’s entitlement to a disability rating in excess of 40 percent for service-connected prostate cancer residuals throughout the period on appeal. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 4.3 regarding reasonable doubt are not applicable. As such, the Veteran’s claim for entitlement to a disability rating in excess of 40 percent for service-connected prostate cancer residuals is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.