Citation Nr: 21066016 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-34 444 DATE: October 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of prostate cancer prior to October 12, 2017 is denied. Entitlement to a rating of 40 percent for residuals of prostate cancer effective October 12, 2017 is granted subject to the laws and regulations governing monetary awards. REMANDED Entitlement to a compensable rating for bowel incontinence is remanded. FINDINGS OF FACT 1. The Veteran's residuals of prostate cancer manifested symptoms of daytime voiding intervals between two to three hours and nighttime awakening to void two times prior to October 12, 2017. 2. The Veteran's residuals of prostate cancer manifested symptoms of voiding three or four times a night and changing absorbent materials two to four times daily as of October 12, 2017. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of prostate cancer prior to October 12, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7528. 2. The criteria for a rating of 40 percent for residuals of prostate cancer as of October 12, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to December 1969. In February 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2019 the Board issued a decision finding that the reduction of the Veteran's disability from 100 percent to 10 percent for prostate cancer was proper. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated September 2020, the Court set aside the Board's denial and remanded the issue for further development and readjudication pursuant to the terms of the joint motion remand (JMR). The February 2021 Board decision found that the reduction of the Veteran's disability from 100 percent to 10 percent for prostate cancer was proper. Thus, the remaining issue before the Board is whether an increased rating for residuals of prostate cancer is warranted. 1. Entitlement to an increased rating for residuals of prostate cancer The Veteran contends he is entitled to an increased rating for his residuals of prostate cancer. The Board notes that during the course of this appeal, the Veteran received a separate rating for bowel incontinence as a residual of prostate cancer rated as non-compensable effective April 6, 2021, which will be discussed separately. See Rating Decision July 2021. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's residuals of prostate cancer are currently rated at 10 percent for the period from December 1, 2017 to April 6, 2021 and from 40 percent thereafter, under DC 7528, for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115. Prostate cancer is evaluated under 38 C.F.R. § 4.115b, DC 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, at which time the Veteran is to be provided a VA examination. 38 C.F.R. § 4.115b, DC 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. The Veteran underwent radiation therapy for treatment of prostate cancer in 2016. The VA medical records demonstrate no local reoccurrence or metastasis of the Veteran's prostate cancer, and the Veteran has not contended otherwise. Accordingly, the Veteran is not entitled to a 100 percent disability rating at any time during the appeal period. As such, for the entire rating period, the Veteran's disability is properly rated based on residual symptoms, either as a voiding dysfunction or a renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528. Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. Under obstructed voiding conditions, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id. Renal dysfunction is also evaluated under 38 C.F.R. § 4.115a. A 100 percent disability rating is warranted for regular dialysis or such dysfunction that precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, a BUN [blood urea nitrogen] level more than 80 mg% [milligrams of urea nitrogen per 100 milliliters of blood]; or a creatine level more than 8mg% [milligrams of serum creatine per 100 milliliters of blood]; or, markedly decreased function of the kidney or other organ systems, especially cardiovascular. An 80 percent disability rating requires persistent edema and albuminuria with a BUN level of 40mg to 80mg; or a creatine level of 4mg to 8mg; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent disability 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. A 30 percent disability 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 non-compensable disability rating is warranted for albumin and casts with history of acute nephritis; or hypertension non-compensable under DC 7101. Id. The Board notes that there is no evidence of record establishing renal dysfunction at any time during the period at issue. The Veteran underwent a VA examination in March 2017. The examiner noted that he received a diagnosis of prostate cancer in March 2016 and was treated from April to June 2016 with external beam radiotherapy and was currently in remission. The Veteran had a voiding dysfunction with frequency and urgency with nocturia one to two times per night with no urine leakage or required use of an appliance. He did have increased urinary frequency with daytime voiding intervals between two to three hours and nighttime awakening to void two times. Additionally, he had signs and symptoms of obstructed voiding with marked hesitancy and markedly decreased force of stream. The examiner found no other residual conditions or complications due to prostate cancer or treatment, to include renal dysfunction. In April 2021 the Veteran attended another VA examination and reported a problem with incontinence, both voiding and bowel movements. He disclosed sleeping on a pad because of urinary dribbling at night and wearing a Depends if he is going on long trips. He described sometimes being unaware that he has to have a bowel movement and occasionally losing complete control of voiding and no sense of urgency until it's immediate. The Veteran denied other residuals. The examiner noted voiding dysfunction that required absorbent material to be changed two to four times per day, daytime voiding intervals between two and three hours and nighttime awakening to void three to four times. He had signs and symptoms of obstructed voiding with markedly slow stream but no history of recurrent symptomatic urinary tract or kidney infections. The examiner included in the remarks that the Veteran reported lower back weakness but noted that he was also going through a knee replacement at the same time as his prostate treatment. In August 2021 an opinion was obtained to clarify whether bowel incontinence or muscular weakness is a residual of prostate cancer treatment. The examiner noted that the Veteran reports current symptoms of lower back weakness however nothing in literature shows development of orthopedic low back symptoms in relation to or caused by directed radiation for prostate cancer. Additionally, the medical records reveal that the Veteran attended physical therapy and reported on January 29, 2018 that he fell down while bowling over a month ago with resultant pain in the left groin, left back and left sacroiliac. The Veteran also reported some low back issues off and on for his entire life and that he received a lot of chiropractic treatment. His pain was considered likely related to his left hip osteoarthritis. The examiner also reported that a physical therapy note from February 13, 2018 reported that the Veteran 'tweaked' his back after slipping on a ramp and x-ray imaging from 2018 revealed multilevel spondylosis that was degenerative in nature. The examiner explained that these findings are age related and entirely unrelated to electron beam radiation for prostate cancer and concluded that the Veteran's muscular weakness is most likely secondary to lower back degenerative disc disease. Review of the medical records reveal that after remission the Veteran continued to have regular follow-ups with radiation oncology. He experienced urinary urgency and nocturia one to two times and frequent diarrhea with leaks. In July 2017 he reported doing all the housework and shopping. In August 2017 at his follow-up appointment the Veteran reported urinary urgency and frequency with nocturia about two times with no dysuria or hematuria. He also reported occasional diarrhea but explained that his diet is erratic and the diarrhea is more common with a Chinese diet. The Veteran disclosed that he is not active stating his knee and muscle weakness he suffered during radiation does not induce much physical activity. In December 2017 he reported a back injury after twisting his back bowling three weeks earlier. The treatment notes from April 2018 state that the Veteran had diarrhea and upset stomach off and on for 10 years, which worsened since radiation with diarrhea at least daily. The Veteran disclosed urination with no dysuria, hematuria or nocturia in August 2018 but occasional diarrhea. In October 2019 the Veteran reported that he does not require assistance with activities of daily living and denied impairment with mobility. The following month, he disclosed nocturia two times a night with increased urgency and ongoing incontinence with bladder and bowel control. In April 2020 the Veteran reported being independent in his activities of daily living and examination revealed normal muscle strength and intact tone. In May 2020 he reported nocturia two times a night and continued urinary incontinence. The Veteran disclosed doing well in November 2020 with no dysuria, constipation, or diarrhea and nocturia only once. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In May 2017 the Veteran provided a statement that he is entitled to a higher rating based on his continued voiding and urgency, which included bowel incontinence. He reported having urgency about every other hour resulting in an accident if he does not make it to the bathroom. He described difficulties with intimacy and the loss of all muscle in the lower back and weakness in the legs after prostate cancer treatment. He reported that he is only able to stand for no longer than a minute without having to sit and even sitting is bothersome. See Statement in Support of Claim May 2017. The Veteran disclosed in October 2017 that he struggles daily and nightly with voiding dysfunction as he has to void three or four times a night and change his absorbent materials throughout the day, two to four times daily. He described having very little notice when he has to go with leaking and dribbling, which interferes with activities of daily living. See Notice of Disagreement October 2017. In June 2018 the Veteran reported difficulty with urgency that resulted in an accident while standing in line at a pharmacy. He explained that he has a need for absorbent material but it was embarrassing and up until that point he was lucky to not wear them even though he should as he is also not able to stop his diarrhea and will leak. He stated that he wakes up in the middle of the night at least twice and voids every two to three hours during the day. The Veteran alleged that there was a lack of proper information in the February 2018 notes and that his embarrassment about the severity of his voidance during the day has not assisted with his claim. See Third Party Correspondence September 2020. The Veteran's spouse provided a statement dated July 2018 stating that since his x-ray treatments, the Veteran has a lot of bathroom problems and is afraid to mess the bed. See Form 9 July 2018. From December 1, 2017 to April 6, 2021 the Veteran is rated at 10 percent for daytime voiding with intervals between two and three hours and awakening to void two times per night. As of April 6, 2021, his rating was increased to 40 percent for requiring the wearing of absorbent materials, which must be changed two to four times per day and additional symptoms of awakening to void three to four times per night, daytime voiding interval between two and three hours, inactive disease, and slow stream. See Rating Decision April 2021. The Board finds the evidence is in equipoise as to when the Veteran's symptoms manifested the criteria contemplated by a 40 percent rating. In October 2017 the Veteran reported voiding three or four times a night and changing his absorbent materials two to four times daily. See Notice of Disagreement October 2017. However, the medical records reflect reports of daytime voiding intervals between two and three hours and awakening to void two times per night for the period on appeal prior to April 6, 2021. As the evidence is in equipoise as to when the Veteran's symptoms increased to include voiding three or four times a night and changing his absorbent materials two to four times daily, the Board finds a rating of 40 percent is warranted effective October 12, 2017. A rating in excess of 10 percent is not warranted prior to October 12, 2017. The March 2017 VA examiner reported a voiding dysfunction with daytime voiding intervals between two to three hours and nighttime awakening to void two times. During this time, the medical records also reflect complaints of urinary urgency and nocturia one to two times, consistent with the criteria contemplated by a 10 percent rating. The Board notes that in May 2017 the Veteran provided a statement alleging urgency about every other hour, difficulties with intimacy and the loss of all muscle in the lower back and weakness in the legs after prostate cancer treatment resulting in the inability to stand for longer than a minute without having to sit and difficulty sitting. See Statement in Support of Claim May 2017. The complaints of urgency every other hour are consistent with daytime voiding intervals between two to three hours and the Veteran is already compensated for erectile dysfunction and loss of use of a creative organ. The Board has considered the Veteran's allegation of loss of muscle or weakness; however, for the following reasons a higher rating, at any time, is not warranted. The August 2021 VA examiner concluded that the muscular weakness is most likely due to low back degenerative joint disease based on the 2018 x-rays revealing multilevel spondylosis that is degenerative in nature, reports of chronic back pain off and on his entire life, and treatment notes documenting injuries to the back and pain related to left hip osteoarthritis. The Board gives greater probative weight to the findings of the August 2021 VA examiner, a health care professional, who reviewed the record and provided an opinion that is well supported by adequate rationale. Additionally, the Board notes that the medical records do not contain reports of difficulty standing for more than one minute but do note that the Veteran was independent in activities of daily living. Specifically, in October 2019 the Veteran reported that he does not require assistance with activities of daily living and denied impairment with mobility and in April 2020 he again reported being independent in his activities of daily living and objective findings revealed normal muscle strength and tone intact. Notably, the Veteran did not disclose any difficulties with activities of daily living despite his alleged extremely limited ability to stand. Therefore, the Board does not find that a separate or higher rating is warranted based on the allegations of muscle weakness and/or the ability to stand for only a minute at a time. Accordingly, the medical and lay evidence prior to October 12, 2017 reveals daytime voiding intervals between two to three hours and nighttime awakening to void two times consistent with the criteria for a 10 percent rating; thus, a higher rating is not warranted. Finally, the Board finds that a rating in excess of 40 percent as of October 12, 2017 is also not warranted. In order to obtain a higher rating, the evidence must show the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Throughout the period at issue, the Veteran reported wearing absorbent materials throughout the day, with no more than two to four changes daily. As such, a higher rating is not warranted. 38 C.F.R. § 4.115a. REASONS FOR REMAND Entitlement to a compensable rating for bowel incontinence The Veteran received a separate rating for bowel incontinence as a residual of prostate cancer rated as non-compensable effective April 6, 2021 under DC 7319. See Rating Decision July 2021. In July 2021, the Veteran attended a VA examination. The examiner noted a diagnosis date of 2019 for neurogenic bowel and bladder disorder and reported that the Veteran's oncologist concluded that the radiation treatment caused nerve damage resulting in bowel and bladder incontinence. See VA Examination July 2021. The effective date for bowel incontinence is April 6, 2021, which is the date of the VA examination for residuals of prostate cancer; however, the medical evidence reveals that the Veteran was treated from April to June 2016 with external beam radiotherapy for his prostate cancer and reported diarrhea as early as 2017. Thus, the evidence of record suggests that a separate rating for bowel incontinence might be assignable earlier. The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Additionally, the Board finds that the July 2021 VA examination is inadequate as it does not contain the information necessary to properly evaluate the Veteran's bowel incontinence. As such, a remand is necessary to obtain a VA examination as well as retrospective opinion on the severity of the Veteran's bowel incontinence throughout the appeal period. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA medical examination to determine the severity of his service-connected bowel incontinence from December 2017 to present. The electronic claims file must be reviewed in conjunction with the examination. The examiner should consider and address the lay statements of record. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner must also provide an assessment of the Veteran's functional limitations due to his bowel incontinence as it may relate to his ability to function in a work setting and to perform work tasks. However, the examiner should refrain from commenting on the Veteran's employability. A complete rationale should be given for all opinions and conclusions rendered. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Finally, readjudicate the appeal. If the benefit sought on remand remains denied, issue a supplemental statement of the case, and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.