Citation Nr: 21074595 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-33 376 DATE: December 15, 2021 ORDER Entitlement to a compensable initial rating for residuals of prostate cancer prior to January 7, 2019, and in excess of 40 percent from August 1, 2019 is denied. FINDINGS OF FACT 1. For the appeals period prior to January 7, 2019, the Veteran's prostate cancer residuals did not result in voiding dysfunction other than awakening once per night to void; there was no evidence of renal dysfunction. 2. From August 1, 2019, the Veteran's prostate cancer residuals did not require the use of an appliance or the wearing of absorbent materials that must be changed more than four time per day. He was already assigned an evaluation in excess of the maximum schedular evaluation available for obstructed voiding, urinary frequency, and urinary tract infections. CONCLUSION OF LAW The criteria for a compensable initial rating for residuals of prostate cancer prior to January 7, 2019, and a rating in excess of 40 percent from August 1, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1965 to October 1967. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In July 2021, the Board remanded the appeal for further development which has since been completed. 1. A compensable initial rating for residuals of prostate cancer prior to January 7, 2019, and in excess of 40 percent from August 1, 2019 Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran underwent a radical prostatectomy in March 2006. The October 2016 rating decision on appeal granted service connection for residuals of prostate cancer and assigned a noncompensable rating from May 18, 2016. This appeal arises from the Veteran's disagreement with the initial rating assigned for prostate cancer. Following the Board's remand, a November 2021 rating decision granted a 100 percent rating for prostate cancer residuals from January 7, 2019; a 40 percent rating was assigned from August 1, 2019. Under Diagnostic Code (DC) 7528, a malignant neoplasm of the genitourinary system (i.e., prostate cancer) is assigned a 100 percent evaluation. However, a Note following that DC, explains that following the cessation of surgical, X-ray, antineo-plastic 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 evaluation based upon that or any subsequent examination shall be subject to the provisions of section 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent evaluation is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night warrants. A 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night. Id. A private DBQ dated in May 2016 noted the Veteran had been diagnosed with prostate cancer in 2005 and underwent prostatectomy in 2006. The Veteran did not have a current voiding dysfunction. He had no history of recurrent symptomatic urinary tract or kidney infections. He had erectile dysfunction. The Board notes that the Veteran's service-connected erectile dysfunction associated with his prostate cancer is separately evaluated and was addressed in the Board's July 2021 decision; it is not currently on appeal. At his hearing, the Veteran's responses were somewhat unclear when asked about urinary frequency and use of pads. His descriptions seemed to be focused mostly on the period in 2006 after his initial surgery, but he indicated that he sometimes wore a pad during the appeals period as well. He also testified that he urinated two to three times during the night, although it was not clear which time frame this referred to. On remand, a July 2021 letter invited the Veteran to further clarify the nature, frequency and severity of his symptoms for the entire appeal period (i.e. since May 18, 2015). The Veteran did not respond to the inquiry. The Veteran testified that he had undergone radiation treatments in 2018-19 following elevation of his PSA. Following the hearing, he submitted partial private treatment records that included an October 2018 initial evaluation report and a January 2919 report after his final radiation treatment. The Veteran did not respond to a written request in July 2021 to authorize VA to obtain these complete records. The October 2018 record referred to a PET/CT in September 2018 that showed no evidence of disease, but noted that he had a rising PSA and positive margins, and needed radiation to the prostate fossa to decrease the chance of local recurrence. The October 2018 and January 2019 records noted nocturia x1, and that the Veteran denied dysuria or urgency. Pursuant to the Board's remand, a VA examiner reviewed the record and interviewed the Veteran in October 2021. The examiner stated that the Veteran had a recurrence of prostate cancer in 2018 that was subsequently treated with radiation therapy. His residuals of prostate cancer were urinary frequency, incontinence, and erectile dysfunction. His prostate cancer was currently in remission following radiation therapy in 2019. The examiner noted that the Veteran's voiding dysfunction required absorbent material which must be changed less than two times per day. The Veteran's daytime voiding interval was between two and three hours. The examiner noted weak stream that was not markedly weak; slow stream that was not markedly slow; and decreased force of stream that was not markedly decreased. Analysis For the period on appeal prior to January 7, 2019, the Board finds no basis to grant a compensable rating. There is no evidence of renal dysfunction. The May 2016 DBQ noted that the Veteran had no voiding dysfunction. The October 2018 and January 2019 records noted nocturia x1, and that the Veteran denied dysuria or urgency. As noted above, the Veteran did not submit any additional evidence regarding his symptoms during this period on appeal. Nocturia once per night does not warrant a compensable rating; a 10 percent rating based on urinary frequency requires awakening to void two times per night. During the period from January 7, 2019 to July 31, 2019, a maximum 100 percent rating has been assigned by the RO. This was based on the recurrence of prostate cancer, with the available evidence demonstrating that radiation therapy began January 7, 2019. For the period from August 1, 2019, the Board concludes that an evaluation in excess of 40 percent for residuals of prostate cancer is not warranted based on the VA examination findings in October 2021. The evidence does not show that the Veteran had urine leakage during this time period that required the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The October 2021 examiner noted the Veteran's use of absorbent materials which must be changed less than two times per day. Moreover, a 40 percent evaluation is the maximum schedular rating available for urinary frequency and is higher than the maximum schedular rating for obstructed voiding and urinary tract infections. There is also no indication of any renal dysfunction. Accordingly, an evaluation in excess of 40 percent is not warranted during this time period. The claim is denied. There is no doubt to be resolved. 38 U.S.C. § 5107 (b). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.