Citation Nr: A21020536 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 211109-197110 DATE: December 27, 2021 ORDER An effective date of June 20, 2011, but no sooner, for the assignment of a 20 percent rating for residuals of prostate cancer is granted. FINDINGS OF FACT 1. The February 2018 rating decision that awarded service connection effective June 20, 2011, did not become final as the Veteran has continuously pursued a higher evaluation for his residuals of prostate cancer. 2. Throughout the appeal period, the Veteran's residuals of prostate cancer have been manifested by a voiding dysfunction that requires the wearing of absorbent materials that must be changed less than two times per day. CONCLUSION OF LAW The criteria for an effective date of June 20, 2011, but no sooner, for the assignment of a 20 percent rating for residuals of prostate cancer have been met. 38 U.S.C.§§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Navy from February 1957 to February 1978. This matter is on appeal from a September 2021 rating decision. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to an effective date prior to June 4, 2020, for the assignment of a 20 percent evaluation for residuals of prostate cancer. According to applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based upon an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the decision is revised or reversed on the basis of clear and unmistaken error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). The general rule for claims for increased ratings is that the award is effective the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date, otherwise, the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). A rating decision becomes final and binding if the veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions regarding service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. The Veteran's residuals of prostate cancer are rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system or postoperative residuals. Diagnostic Code 7528 instructs to rate as voiding dysfunction or urinary tract infection, whichever is predominant. The criteria for voiding dysfunction and urinary tract infection are found in § 4.115a. Voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. A 20 percent rating for voiding dysfunction is warranted for requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Voiding dysfunction that manifests as urinary frequency warrants a 40 percent rating when daytime voiding intervals are less than one hour, or awakening to void (nocturia) occurs five or more times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours, or nocturia occurs three to four times per night. A 10 percent rating is warranted when daytime voiding intervals are between two and three hours, or nocturia occurs twice per night. Id. On June 20, 2011, VA received the Veteran's claim of entitlement to service connection for prostate cancer. His claim was denied by the AOJ in an August 2012 rating decision. The Veteran submitted a timely notice of disagreement in November 2012. In October 2014, the AOJ issued a statement of the case. The Veteran did not perfect an appeal. Subsequently, on November 14, 2017, VA received another claim for entitlement to service connection for prostate cancer. In February 2018, the AOJ denied the Veteran's claim of entitlement to service connection for prostate cancer. In February 2018, the filed a notice of disagreement. The AOJ granted service connection for prostate cancer in April 2020 and assigned a noncompensable evaluation, effective June 20, 2011. In October 2018, the Veteran underwent a private prostate examination. He denied dysuria, hematuria, nocturia, frequent urination, urinary slowing, splitting of stream, post-void dribbling, and overflow incontinence. The examination was within normal limits. On June 4, 2020, the Veteran requested a higher-level review of the April 2020 rating decision and requested an increased evaluation for his residuals of prostate cancer. In October 2020, the AOJ issued a rating decision continuing the Veteran's noncompensable evaluation for prostate cancer. On January 28, 2021, VA received a supplemental claim for an increased evaluation for prostate cancer. In January 2021, O.C., a nurse practitioner, wrote that the Veteran had experienced stress-related incontinence since his radical prostatectomy in 2005. The Veteran purchased over-the-counter absorbent yields to prevent urinary leakage. In February 2021, the Veteran was afforded his only VA prostate cancer examination. The Veteran endorsed urinary issues since his surgery in 2005. The Veteran's residuals of prostate cancer were manifested by voiding dysfunction and urinary leakage. The Veteran required absorbent materials, which were changed less than twice a day. He experienced nighttime awakening to void 3 to 4 times. Finally, the Veteran had obstructed voiding that was manifested by slow stream, weak stream, and decreased force of stream. In February 2021, the Veteran was granted a 20 percent evaluation for residuals of prostate, effective June 4, 2020. On July 27, 2021, VA received a supplemental claim for an effective date prior to June 4, 2020, for the assignment of a 20 percent evaluation for residuals of prostate cancer. In July 2021, the Veteran wrote that the symptoms described in his January 7, 2021, statement began in 2005. The Veteran's claim for an earlier effective date was denied in a September 2021 rating decision. Based upon the forgoing, the Board finds that the Veteran is entitled to an effective date of June 20, 2011, but no earlier, for a 20 percent evaluation for residuals of prostate. The February 2018 rating decision that awarded service connection effective June 20, 2011, did not become final as the Veteran has continuously pursued a higher evaluation for his residuals of prostate cancer. Furthermore, the evidence is at least in equipoise that the Veteran's residuals of prostate cancer have been manifested by a voiding dysfunction that requires the wearing of absorbent materials that must be changed less than two times per day for the entire appeal period. The Veteran's VA examiner, nurse practitioner, and the lay statements all indicate that the Veteran has required absorbent materials for the entire appeal period. An effective date of June 20, 2011, but no sooner, for the assignment of a 20 percent rating for residuals of prostate cancer is granted. 38 U.S.C.§§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.