Citation Nr: 21077587 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-18 631 DATE: December 30, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected bladder cancer residuals is denied. FINDING OF FACT The Veteran's service-connected bladder cancer residuals were manifested by awakening to void two times per night but not by daytime voiding interval between one and two hours, or; awakening to void three to four times per night. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected bladder cancer residuals have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1957 to April 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2017 and November 2021 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in September 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to an initial rating in excess of 10 percent for service-connected bladder cancer A February 2017 VA treatment record noted that the Veteran had bladder cancer with a tumor removed in November 2014. A July 2017 private treatment record noted that the Veteran had bladder cancer issues for many years. The private provider noted that the symptoms were always low-grade and noninvasive. A recent cystoscopy showed a posterior bladder wall tumor but there was no evidence of malignancy in the specimen. An August 2017 private treatment cancer noted that a bladder biopsy revealed no cancer. In addition, the Veteran was voiding well. An August 2017 letter from the Veteran's private provider noted that the Veteran had documented bladder cancer and that his last bladder tumor was removed in September 2014. The Veteran was afforded an in-person VA examination for his service-connected bladder cancer in October 2017. The VA examiner noted a diagnosis of bladder cancer originally diagnosed in 2014. The VA examiner further noted that the last tumor was removed in September 2014. The Veteran reported that he received follow-up every 3 months and that suspicious tissue was removed multiple times on follow-up cystoscopies. The Veteran originally experienced gross hematuria prior to his diagnosis. Current symptoms included frequency and leakage. The VA examiner noted that the Veteran had voiding dysfunction due to a documented history of enlarged prostate without urinary obstruction. The Veteran also reported urine leakage but did not require the wearing of absorbent material. The Veteran did not require use of an appliance either. The Veteran did not have signs or symptoms of obstructed voiding. The Veteran did have increased urinary frequency with nighttime awakening to void 2 times. The VA examiner also noted that the Veteran did not have renal dysfunction. The VA examiner determined that the Veteran had a history of malignant neoplasm that was in remission. An August 2018 private treatment record noted that the Veteran had "no bladder cancer now." The Veteran stated on his September 2018 notice of disagreement, "I was diagnosed with bladder cancer in September 2014 and have been receiving treatment to combat the disease ever since." The Veteran argued that he had bladder cancer, not an inactive disease. A January 2019 VA treatment record again noted that the Veteran had bladder cancer with a tumor removed in November 2014. An August 2019 private treatment record noted that the Veteran had a cystourethroscopy of the bladder that showed no lesion. Another August 2019 private treatment record noted that the Veteran had malignant neoplastic disease of the bladder with onset in August 2019. However, this August 2019 private treatment record also listed 13 other reviewed problems, such as anemia, hypertension, cough, diarrhea, and bronchitis, and noted an August 2019 onset date for all of the unrelated problems. On his April 2020 VA Form 9, the Veteran argued that the October 2017 VA examination was in adequate. Again, the Veteran argued that he was currently being treated for bladder cancer and that his disability was not inactive. He stated that he routinely underwent bladder examinations and surgical removal of growths form his bladder warranting a 100 percent evaluation. He also stated that he experienced renal dysfunction in the form of blood in his urine in the past. The Veteran was afforded another in-person VA examination in October 2021. The VA examiner opined that the Veteran did not have renal dysfunction. The Veteran reported nighttime voiding once nightly but denied leakage, incontinence, stress incontinence, appliance use, or need for absorbent material. Accordingly, the VA examiner noted that the Veteran had a voiding dysfunction due to bladder cancer. The Veteran stated that he had a total of 4 or 5 tumors removed with the last one removed one month prior. The VA examiner noted that the course of the condition since onset had stayed the same. The VA examiner noted that the Veteran did not have metastasis of the cancer but that there was suspicious tissue removed that was benign. The VA examiner further stated that the Veteran was currently asymptomatic. The VA examiner indicated that the information provided by the Veteran could not be confirmed because it was not noted in available medical records. Nonetheless, the VA examiner opined that the examiner believed the Veteran's cancer was still considered to be "in remission." The VA examiner also determined that the Veteran's bladder condition did not impact his ability to work. Pursuant to Diagnostic Code 7528, malignant neoplasms of the genitourinary system, provides one disability level, 100 percent for active disease. A Note to that Code states 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 evaluation based on 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, a Veteran's cancer is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagostic Code 7528. As discussed above, Diagnostic Code 7528 provides one disability level, 100 percent for active disease, and residuals of the disease are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. The record reveals that the Veteran experienced voiding dysfunction but not renal dysfunction. As relevant here, criteria used to rate urinary frequency provide that a rating of 10 percent is assigned for daytime voiding interval between two and three hours, or; awakening to void two times per night. 38 C.F.R. § 4.115a. A 20 percent rating is assigned for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. Id. A 40 percent rating is assigned for daytime voiding less than one hour, or; awakening to void five or more times per night. Id. Here, the Board finds that the Veteran did not have an active disease at any time during the period on appeal. The Board acknowledges the Veteran's argument that he continued to receive treatment and biopsies for his bladder cancer. However, the overwhelming evidence shows that the Veteran's last active tumor was removed in September 2014. See August 2017 private provider letter and October 2017 VA examiner's report. And, again in October 2021, the Veteran's bladder cancer was noted to be in remission. The only evidence in support of an active disease during the period on appeal is the August 2019 private treatment record that noted that the Veteran had malignant neoplastic disease of the bladder with onset in August 2019. However, the Board affords no probative value to this private treatment record because it did not cite to any biopsies or other test results or medical findings in support of an active disease. And, another August 2019 private treatment record noted that the Veteran did not have any lesions upon diagnostic testing. Moreover, the private treatment record cited to 13 other problems and noted an onset date of August 2019 for all of the listed problems indicating that the current month and year was simply noted as an onset date for all of the problems but was not the actual onset date. The Board finds that the preponderance of the evidence shows that the Veteran did not have active bladder cancer during the period on appeal. See August 2019 private treatment record noting not bladder lesions. See also August 2017 private provider letter, October 2017 VA examiner's report, and October 2021VA examiner's report. Next, the Board finds that a rating in excess of 10 percent for bladder cancer residuals is not warranted. First, the Board finds that the Veteran did not have renal dysfunction during the period on appeal. The Board acknowledges the Veteran's April 2020 argument that he had renal dysfunction due to blood in his urine in the past. See April 2020 VA Form 9. However, the Veteran did not indicate how recent or remote in the past these symptoms occurred. In addition, the remainder of the evidence fails to evidence any symptoms of renal dysfunction and both the October 2017 and October 2021 VA examiners determined that the Veteran did not have renal dysfunction. Accordingly, the Board finds that the evidence fails to establish that the Veteran suffered renal dysfunction during the period on appeal. However, the Board finds that the Veteran did have voiding dysfunction manifested by awakening one to two times nightly to void. See October 2017 and October 2021 VA examinations. No evidence, lay or medical, indicates that the Veteran had daytime voiding interval between one and two hours, or; awakening to void three to four times per night. Accordingly, a higher, 20 percent rating is not warranted. As the preponderance of the evidence is against the Veteran's claim, the Veteran's claim for an initial rating in excess of 10 percent for service-connected bladder cancer residuals is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, Associate 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.