Citation Nr: 21070277 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 12-21 524 DATE: November 23, 2021 ORDER From March 1, 2011 to June 29, 2012, an additional 10 percent rating is awarded on an extraschedular basis for bladder pain and dysuria associated with residuals of prostate cancer, and thus a current rating of 70 percent for the period is granted. From June 29, 2012 forward, an additional 10 percent rating is awarded on an extraschedular basis for bladder pain and dysuria associated with residuals of prostate cancer, and thus a current rating of 50 percent for the period is granted. FINDINGS OF FACT 1. From March 1, 2011 forward, the Veteran's residuals of prostate cancer are not adequately reflected in the VA Schedule for Rating Disabilities and they present an exceptional disability picture due to marked interference with employment that would render impractical the application of the regular schedular standards. 2. From March 1, 2011 to June 29, 2012, the Veteran's residuals of prostate cancer have been manifested by incontinence requiring the wearing of absorbent materials that must be changed more than four times per day; urinary frequency with daytime voiding interval of less than one hour; awakening to void five times or more per night; erectile dysfunction; and bladder pain and dysuria. 3. From June 29, 2012 forward, the Veteran's residuals of prostate cancer have been manifested by incontinence requiring the wearing of absorbent materials that must be changed two to four times per day; and bladder pain and dysuria. CONCLUSIONS OF LAW 1. From March 1, 2011 to June 29, 2012, the criteria for an extraschedular rating of 70 percent, inclusive of an additional 10 percent for residuals of prostate cancer with bladder pain and dysuria, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. 2. From June 29, 2012 forward, the criteria for an extraschedular rating of 50 percent, inclusive of an additional 10 percent for residuals of prostate cancer with bladder pain and dysuria, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from August 1969 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision, by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which reduced the rating for prostate cancer from 100 percent disabling to 40 percent disabling, effective March 1, 2011. In a February 2015 decision, the Board denied restoration of a 100 percent disability rating for service-connected prostate cancer, effective March 1, 2011. The Board also granted a 60 percent rating for prostate cancer for the period from March 1, 2011, to June 28, 2012, and denied a rating in excess of 40 percent from June 29, 2012. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Order, the Court granted a Joint Motion for Partial Remand (JMPR) which vacated the portion of the Board's decision that denied higher ratings for prostate cancer, and remanded the matter to the Board for action consistent with the motion. The Board remanded this matter in September 2016 for additional development in compliance with the JMPR. In a June 2017 decision, the Board denied increased ratings in excess of 60 percent for prostate cancer, status-post brachytherapy for the period from March 1, 2011 to June 28, 2012 and in excess of 40 percent thereafter. The Board also declined to refer the increased ratings issues for extraschedular consideration. The Veteran appealed the Board's June 2017 decision the Court. By a May 2018 Order, the Court, pursuant to a JMPR, vacated the Board's June 2017 decision to the extent that it had failed to refer an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for the service-connected prostate cancer, status-post brachytherapy; and remanded the matter for action consistent with the JMPR. The JMPR also noted that the Veteran was not pursuing the issues of entitlement to an increased schedular ratings for the periods on appeal, and that those issues should be dismissed. In February 2019, the Board remanded the issue of entitlement to an extraschedular rating for the Veteran's prostate residuals for referral to the Director of Compensation Services. Upon return of the appeal in January 2021, the Board again remanded the matter for further evidentiary development. The directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). This appeal arises from the Veteran's disagreement with the assigned rating following the grant of service connection. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The AOJ associated the Veteran's service and VA outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Extraschedular Rating 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends he is entitled to an extraschedular rating for his residuals of prostate cancer. The Veteran is currently assigned a 100 percent rating from May 29, 2009, a 60 percent rating from March 1, 2011 to June 29, 2012, and a 40 percent rating from June 29, 2012. The Veteran's residuals of prostate cancer are rated under Diagnostic Code 7528 for malignant neoplasms of the genitourinary system pursuant to 38 C.F.R. § 4.115b. According to VA regulations, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Under Diagnostic 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and shall continue with a mandatory VA examination at the expiration of six months. 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). If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Urine leakage requiring the wearing of absorbent materials that must be changed less than two times per day warrants a 20 percent rating. A 40 percent rating is warranted when the wearing of absorbent materials which must be changed two to four times per day is required. A 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is required. 38 C.F.R. § 4.115a. Urinary frequency involving a daytime voiding interval between two and three hours, or; awakening to void two times per night, warrants a 10 percent rating. Urinary frequency involving 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 less than one hour, or; awakening to void five or more times per night, warrants a 40 percent rating. 38 C.F.R. § 4.115a. For a rating based on obstructed voiding, a 0 percent rating requires obstructive symptomatology with or without stricture disease requiring periodic dilatation one to two times per year. A 10 percent rating requires 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; markedly diminished flow rate (less than 10 cc/second); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115a. The rating criteria for a urinary tract infection provide that a noncompensable rating is warranted if the condition is manifested by recurrent symptomatic infection not requiring hospitalization, but requiring suppressive drug therapy for less than 6 months. A 10 percent rating is warranted if the condition is manifested by recurrent symptomatic infection requiring 1-2 hospitalizations per year or suppressive drug therapy lasting six months or longer. A 30 percent rating is warranted if the condition is manifested by recurrent symptomatic infection requiring drainage by stent or nephrostomy tube and/or frequent hospitalizations (greater than two times/year), and/or requiring continuous intensive management. Higher ratings may also be assigned for poor renal function under the criteria for renal dysfunction. 38 C.F.R. § 4.115a. As discussed above, the Board, in its February 2015 decision, awarded a 60 percent rating for the period from March 1, 2011 to June 29, 2012, and a 40 percent rating thereafter. The Board predicated its awards upon voiding dysfunction as the predominant residuals. As indicated in a subsequent May 2018 JMPR, the Veteran did not wish to pursue his appeals regarding the schedular ratings assigned for his service-connected residuals of prostate cancer. Rather, the sole issue on appeal is whether an extraschedular rating is warranted pursuant to 38 C.F.R. § 3.321(b)(1). As highlighted by the July 2016 and May 2018 JMPRs of record, the Veteran's contentions center upon his general complaints of abdominal pain in October 2010, and October 2011 and December 2011 reports of bladder pain and dysuria. The Veteran's claim was referred to the Director of Compensation Service who denied an extraschedular rating in November 2020. The Director determined the objective evidence of record failed to corroborate incapacitating episodes creating marked interference with employment or frequent hospitalizations due specifically to prostate cancer or treatment for prostate cancer. The Director further determined that the evidence of record did not show that the currently assigned, or available, schedular evaluations for prostate cancer were inadequate due to exceptional or unusual circumstances. Therefore, the Director determined that there was no unusual or exceptional disability pattern demonstrated that would render application of the regular rating criteria was impractical and that an increased rating on an extraschedular basis for the Veteran's prostate cancer residuals was not warranted. Upon return of the appeal in January 2021, the Board noted that the Veteran's general complaint of abdominal pain in October 2010, and October 2011 and December 2011 reports of bladder pain and dysuria, which are not specifically contemplated by the relevant Diagnostic Code for prostate cancer, was not addressed by the November 2020 extraschedular opinion. Pursuant to the Board's January 2021 remand, the Veteran was afforded a VA examination in June 2021. The Veteran endorsed blood in his urine, bladder pain one to two times per week as well as dysuria at least once per day and most often in the afternoon before dinner. The Veteran also reported urinary incontinence and nocturia, altered stream flow, dribbling, retention, and abdominal pain. The VA examiner indicated that the Veteran's voiding dysfunction causes urinary leakage, but does not require absorbent material or use of an appliance. Regarding urinary frequency, the examination report indicated that the Veteran had a daytime voiding interval between two and three hours, and nighttime awakening to void two times. The VA examiner also reported that the Veteran has obstructed voiding resulting in a weak stream and decreased force of stream. The examination report noted that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. The VA examiner opined that the Veteran's complaints of residual bladder pain and dysuria are at least as likely as not a result of prostate cancer. The VA examiner further opined that the general complaints of abdominal pain in the right upper quadrant are not related to prostate cancer, but rather non-service connected gastrointestinal issues, to include diagnoses of diverticula and internal hemorrhoids and gastroesophageal reflux disease. The VA examiner noted that incontinence, nocturia, flow changes, and frequency could all cause bladder pain, and that treatment for such could cause a reversal of symptoms such as bladder retention and difficulty starting a stream. The VA examiner premised the opinion upon the Veteran's ongoing complaints of intermittent dysuria since 2009 and its treatment with Pyridium as documented in medical records, and bladder pain, incontinence, nocturia, flow changes, and frequency since the diagnosis and treatment of prostate cancer. Because the appeal for an extraschedular evaluation has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, on a de novo basis, whether an extraschedular rating is warranted. The Board acknowledges that the distinct disabilities of bladder pain and dysuria are residuals of the Veteran's service-connected prostate cancer, and that the Veteran asserts that the presence of such should warrant an increased rating on an extraschedular basis. As discussed above, Diagnostic 7528 directs that the assigned rating for prostate cancer is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant, if there has been no local recurrence or metastasis. 38 C.F.R. § 4.115b. Under 38 C.F.R. § 4.115a for ratings of the genitourinary system dysfunctions, the regulations dictate that where diagnostic codes refer the decisionmaker to these specific areas dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. The symptoms of bladder pain and dysuria at issue on appeal are not specifically contemplated by the schedular criteria for voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infection. Thus, as the schedular evaluation for the Veteran's residuals of prostate cancer is currently rated upon voiding dysfunction, it is inadequate as it does not contemplate the Veteran's bladder pain and dysuria. Upon review, the Board notes that the diagnostic criteria under 38 C.F.R. §§ 4.115a and 4.115b appear to be in conflict with the extraschedular provisions of 38 C.F.R. § 3.321(b)(1), as to assign an extraschedular rating would run afoul of 38 C.F.R. §§ 4.115a and 4.115b which direct to rate only the predominant area of dysfunction and in this case, the predominant dysfunction associated with the Veteran's residuals of prostate cancer. Nevertheless, except for guidance in Thun that the extraschedular rating must be in the interest of justice, little guidance exists on how to assign the rating. Thun v. Peake, 572 F.3d 1366 (Fed. Cir. 2009). Further, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Kuppamala v. McDonald, 27 Vet. App. 447, 443, n. 7 (2015). Therefore, in the interest of justice, and in consideration of the Veteran's bladder pain and dysuria, are separate and distinct disabilities as indicated by the June 2021 VA examiner, 38 C.F.R. §§ 4.115a and 4.115b provide guidance in the assignment of an extraschedular rating. The Board finds that the Veteran's bladder pain and dysuria approximate a urinary tract infection under 38 C.F.R. §§ 4.115a. As discussed above, the diagnostic criteria contemplate recurrent symptoms and suppressive drug therapy. The June 2021 VA examiner indicated that the Veteran is currently prescribed Ditropan for management of bladder control. In her medical opinion, the VA examiner opined that such could cause a reversal of symptoms such as bladder retention and difficulty starting a stream. The Board notes that a 10 percent rating contemplates suppressive drug therapy lasting six months or longer, and the Board finds that this Diagnostic Code provides some guidance for assigning an extraschedular rating in this case. The Board finds that, with consideration of the voiding dysfunction symptoms, which were already assigned the 60 percent maximum rating from March 1, 2011 to June 29, 2012, and a 40 percent rating from June 29, 2012 under Diagnostic Code 7528, compounded by bladder pain and dysuria, an additional 10 percent extraschedular rating is warranted for each period, thus increasing the residuals of prostate cancer to 70 percent disabling from March 1, 2011 to June 29, 2012, and 50 percent disabling from June 29, 2012 under the provisions of 38 C.F.R. § 3.321(b)(1). Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 70 percent extraschedular evaluation for residuals of prostate cancer from March 1, 2011 to June 29, 2012, and a 50 percent extraschedular evaluation from June 29, 2012. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.