Citation Nr: 21001468 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 18-25 684 DATE: January 8, 2021 ORDER From June 1, 2018, entitlement to a rating of 60 percent, but no higher, for residuals of prostate cancer is granted subject to the laws and regulations governing monetary benefits. Throughout the period on appeal, entitlement to a rating in excess of 60 percent for residuals of prostate cancer is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s prostate cancer residuals, at worst, have been manifested by voiding dysfunction that required the wearing of absorbent materials that had to be changed more than four times per day. CONCLUSIONS OF LAW 1. From June 1, 2018, the criteria for a rating of 60 percent, but no higher, for residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for a rating in excess of 60 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in June 2020, when it was remanded for further development. During the pendency of the appeal, a September 2020 rating decision granted an increased 60 percent disability rating for residuals of prostate cancer, effective March 5, 2020. See September 2020 Rating Decision – Narrative. As this rating is not the maximum allowable, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, 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 ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. From June 1, 2018, entitlement to a rating of 60 percent, but no higher, for residuals of prostate cancer is granted subject to the laws and regulations governing monetary benefits. 2. Throughout the period on appeal, entitlement to a rating in excess of 60 percent for residuals of prostate cancer is denied. As an initial matter, the Veteran filed his claim for entitlement to service connection for prostate cancer on October 7, 2015. See October 2015 VA Form 21-4138 Statement in Support of Claim. The claim was granted in a November 2015 rating decision and assigned a 100 percent rating, effective October 7, 2015. See November 2015 Rating Decision – Narrative. In February 2017, the RO proposed to decrease the Veteran’s prostate cancer disability rating from 100 percent to 0 percent based on inactive disease. See February 2017 Rating Decision – Narrative. Thereafter, in a March 2018 Rating Decision, the RO decreased the Veteran’s prostate cancer residuals rating from 100 percent to 20 percent, effective June 1, 2018, and the Veteran filed a timely notice of disagreement (NOD) in April 2018. See March 2018 Rating Decision – Narrative; April 2018 NOD. During the pendency of the appeal, a May 2018 rating decision increased the Veteran’s disability rating from 20 percent to 40 percent, effective June 1, 2018. See May 2018 Rating Decision – Narrative. Thereafter, a September 2020 rating decision granted an increased 60 percent disability rating for residuals of prostate cancer, effective March 5, 2020, the date of the Veteran’s Travel Board hearing. See September 2020 Rating Decision – Narrative. During his March 2020 hearing, the Veteran explicitly stated that he did not disagree with the rating reduction from 100 percent. See March 2020 Hearing Transcript, page 8. Thus, the issue of the propriety of the reduction is not before the Board. The Veteran’s service-connected residuals of prostate cancer have been rated pursuant to 38 C.F.R. § 4.115b, DC 7528. Under DC 7528, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. A note after this code provides that, 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. Any change in rating 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 disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a, DC 7528. Regarding urine leakage, a 20 percent rating is warranted when the wearing of absorbent materials must be changed less than two times per day. A 40 percent rating is assigned when the wearing of absorbent materials must be changed two to four times per day, and a 60 percent rating is warranted when use of an appliance is required or wearing of absorbent materials must be changed more than four times per day. See 38 C.F.R. § 4.115a. With regard to urinary frequency, a 10 percent rating is warranted with daytime voiding intervals between two and three hours, or awakening to void two times per night. A 20 percent rating is assigned for daytime voiding intervals between one and two hours, or awakening to void three to four times per night, and a 40 percent rating is warranted for daytime voiding intervals of less than an hour, or awakening to void five or more times per night. See 38 C.F.R. § 4.115a. Turning to the evidence of record, a November 2017 urology outpatient note shows that the Veteran endorsed nocturia, which occurred approximately once per night, and hourly voids during the day. In this regard, the examiner stated that the Veteran’s profound irritability low capacity bladder may be made worse by prostate surgery even though he had obstructing prostatism. In December 2018, the Veteran reported continued urinary and prostate symptoms. In this regard, the examiner noted that the Veteran experienced nocturia three to four times per night, and the Veteran reported that he occasionally felt like his bladder was not emptying. In addition, the Veteran stated that he could not reach the bathroom quickly enough and experienced incontinence. In June 2019, the Veteran endorsed progressively worsening incontinence and stated that he managed his symptoms by using his girlfriend’s menstrual pads. The assessment included bladder outlet obstruction symptoms exacerbated by external beam radiation therapy. A December 2019 urology outpatient note shows that the Veteran was seen for a follow-up appointment for prostate specific antigen and lower urinary tract symptoms. The Veteran continued to endorse urge incontinence. He also reported that he had been treated with trospium and oxybutynin in the past but stated that they caused severe dry mouth and constipation. The assessment included bladder outlet obstruction symptoms exacerbated by external beam radiation therapy, and the examiner prescribed pads for the Veteran’s incontinence. See February 2020 CAPRI. In support of his claim, the Veteran also submitted a log, dated in February 2020, showing the number of times he woke up due to leakage. The log shows that the Veteran experienced nightly leakage that occurred up to six times per night. See March 2020 Logbooks. During the March 2020 Board hearing, the Veteran testified that the severity of his service-connected prostate cancer residuals was gradually increasing. Specifically, the Veteran testified that he wore absorbent materials for voiding dysfunction symptoms, to include urgency and leakage, and stated that he had to change the materials three to six times per day. He also endorsed urinary flow problems and nasal congestion. The Veteran further testified that he previously experienced severe side effects from his prostate cancer medications, to include nasal congestion that interfered with his ability to breathe and problems with his nipples and breasts. See March 2020 Hearing Transcript, pages 2-9. Lastly, the Veteran underwent a VA examination in July 2020. The examiner noted that the Veteran had been diagnosed with prostate cancer, voiding dysfunction secondary to prostate cancer, and erectile dysfunction. The examiner noted that the Veteran had been treated for prostate cancer with radiation therapy and androgen depravation therapy, which were completed in 2016. The status of the Veteran’s prostate cancer was noted to be in remission. The examiner found that the Veteran had a voiding dysfunction, which caused urine leakage two to six times per day. The Veteran further endorsed daytime voiding intervals of less than one hour, nighttime awakening to void three to four times per night, marked hesitancy, and markedly weak stream. The Veteran did not report a history of recurrent symptomatic urinary tract or kidney infections or retrograde ejaculation, but he did endorse erectile dysfunction. Following the examination, the examiner found that the Veteran’s prostate cancer residuals, to include urinary leakage, interfered with his work and productivity because he required frequent bathroom breaks. The examiner further found that frequent waking at night caused the Veteran to be less well rested during the day. See August 2020 C&P examination. After a review of the evidence of record, the Board finds that from June 1, 2018, the Veteran is entitled to a rating of 60 percent, but no higher, for residuals of prostate cancer, under DC 7528. To this end, the evidence of record shows that the Veteran’s prostate cancer residuals were manifested by, at worst, the wearing of absorbent materials that had to be changed three to six times per day throughout the relevant period. The Board has considered whether a higher 100 percent rating is warranted. However, in consideration of the evidence of record, the Board finds that the weight of the evidence preponderates against entitlement to a rating in excess of 60 percent for the Veteran’s service-connected prostate cancer residuals. In this regard, the Veteran underwent a radiation therapy and androgen deprivation therapy in 2016, and there has been no metastasis or recurrence. See August 2020 C&P examination. Therefore, the criteria for a 100 percent rating under DC 7528 for prostate cancer residuals are not met. As noted above, the Veteran is in receipt of the maximum 60 percent disability rating under DC 7528 for voiding dysfunction, and as such, a higher rating is not available. 38 C.F.R. § 4.115a. While disability ratings greater than 60 percent are available for prostate cancer residuals when renal dysfunction predominates, the record does not demonstrate any renal dysfunction. Therefore, discussion of a potentially higher rating based on renal dysfunction is unnecessary. Id. The Board acknowledges the Veteran’s reports that he previously experienced severe side effects from his prostate cancer medications, to include nasal congestion that interfered with his ability to breathe and problems with his nipples and breasts. See March 2020 Hearing Transcript, page 9. In this regard, a February 2017 urology outpatient note shows that the Veteran had been prescribed Flomax for lower urinary tract symptoms, but the medication was subsequently discontinued because it caused nasal congestion. In addition, VA treatment records dated from September to December 2017 show that medications the Veteran took for his prostate, to include finasteride, caused soreness in his breasts and nipples and were subsequently discontinued. See March 2018 CAPRI. The Board also recognizes the Veteran’s report that he had to wear a bag, which subsequently became infected and led him to seek emergency medical care four times over a four day period. See March 2020 Hearing Transcript, pages 4-5. In this regard, a June 2017 emergency department note shows that the Veteran sought emergency medical treatment for penile discomfort, which began after he received a Foley catheter; further medical records show that the catheter was later removed. See March 2018 CAPRI. The Board notes that the Veteran has not argued, and the evidence of record does not show, that the Veteran continued to experience nasal congestion, problems with his nipples and breasts, or any other symptoms caused by his prostate medications or Foley catheter after they were discontinued or removed, and there is no evidence of a chronic condition. Moreover, to the extent that the Veteran argues that he should be entitled to a higher rating for his prostate cancer residuals, his opinion is outweighed by the detailed opinions provided by the medical professionals who examined the Veteran’s prostate and reported in detail all facets of impairment involved. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In view of the above, the Board finds that a higher 60 percent evaluation is warranted. However, the Board also finds that throughout the period on appeal, the preponderance of the evidence is against a rating in excess of 60 percent for the Veteran’s service-connected prostate cancer residuals. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, 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.