Citation Nr: 21005423 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 20-19 029 DATE: February 1, 2021 ORDER Prior to February 10, 2020, entitlement to a rating in excess of 20 percent for prostate cancer, status post radical prostatectomy (prostate cancer) is denied. From February 10, 2020, entitlement to a 60 percent rating for prostate cancer is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to February 10, 2020, the evidence of record does not reflect that the symptoms of the Veteran’s prostate cancer included renal dysfunction; and the symptoms of his voiding dysfunction did not require the wearing of absorbent materials which needed to be changed two to four times per day due to urine leakage; caused a daytime urinary voiding interval of less than one hour or awakening to void five or more times per night; or caused urinary retention requiring intermittent or continuous catherization due to obstructed voiding. 2. Resolving all reasonable doubt in favor of the Veteran, from February 10, 2020, the symptoms of the Veteran’s prostate cancer included voiding dysfunction, which required the use of absorbent materials that needed to be changed more than four times per day. CONCLUSIONS OF LAW 1. Prior to February 10, 2020, the criteria for a rating in excess of 20 percent for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, 4.115b, Diagnostic Code 7528. 2. From February 10, 2020, the criteria for a 60 percent rating for prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from October 1966 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in September 2018. In February 2020, the AOJ increased the Veteran’s rating to 40 percent for prostate cancer status post radical prostatectomy effective February 10, 2020. Because the increase in evaluation of the Veteran’s disability does not represent the maximum evaluation available for the condition, the Veteran’s claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 20 percent for prostate cancer prior to February 10, 2020, and in excess of 40 percent thereafter A February 2016 rating decision granted service connection for prostate cancer, status post prostatectomy with an evaluation of 100 percent effective December 29, 2015; which was continued in a September 2016 rating decision. In June 2017, the AOJ prepared a rating decision that proposed to reduce the 100 percent disability rating to 20 percent; and the Veteran was provided a copy of the notice letter and a copy of the rating decision proposing the reduction, a few days later in June 2017. The notice letter informed the Veteran of his option for a personal hearing and that he would be afforded 60 days in which to submit additional evidence. The Veteran filed a claim for service connection for urinary incontinence in August 2017. A November 2017 rating decision indicated that the Veteran’s claim regarding his prostate cancer and proposal to be reduced based on condition currently in remission would be issued in a later rating decision. A September 2018 rating decision decreased the rating to 20 percent effective December 1, 2018, which the Veteran appealed. As noted, a February 2020 rating decision increased the rating to 40 percent effective February 11, 2020. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. After a review of the evidence, for reasons set forth below, the Board finds that a rating in excess of 20 percent is not warranted prior to February 10, 2020; and resolving all reasonable doubt in favor of the Veteran, a 60 percent rating is warranted for the Veteran’s prostate cancer from February 10, 2020. The Veteran’s prostate cancer, status post prostatectomy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Veteran was granted a 100 percent evaluation for prostate cancer under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528, which pertains to malignant neoplasms of the genitourinary system, provides: following the cessation of surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months and 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). The Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. In this regard, the Board finds that these provisions are not applicable in the present case. This is because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ’s action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, with respect to rating reductions and terminations of 100 percent ratings, are not applicable in this case. The rating criteria under Diagnostic Code 7528, also provide that if there has been no local reoccurrence or metastasis, then a Veteran’s cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The medical evidence of record reflects that the predominant symptoms of the Veteran’s prostate cancer are most similar to those in the criteria for voiding dysfunction. See August 2016, June 2017, and February 2020 VA examinations. See also 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.115a, voiding dysfunction is rated with regard to urine leakage, frequency, or obstructive voiding. With regards to urine leakage, a 20 percent rating is warranted when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials that must be changed two to four times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. 38 C.F.R. § 4.115a. With regards to urinary frequency, 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; and 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. With regards to obstructed voiding, a 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. Based on the evidence as outlined above, the Board finds that the rating reduction in this case complies with the due process requirements of 38 C.F.R. § 3.105. In June 2017, the VA examiner noted that the Veteran had a voiding dysfunction which caused urinary leakage, but did not require the wearing of absorbent material; caused increased urinary frequency with a daytime voiding interval between 1 and 2 hours and nighttime awakening to void 2 times; and obstructive voiding with a slow stream. The Veteran reported that he had to wear pads after his surgical procedure in June 2016; although he currently would get occasional leakage, he had not needed pads on a daily basis for some time. In addition, the Board notes that although the Veteran filed a claim of entitlement to service connection for his urinary incontinence in September 2017, he did not state or indicate that his voiding dysfunction had worsened since the June 2017 VA examination, and did not indicate that he needed to use absorbent material due to his urinary incontinence. See 38 C.F.R. § 4.115a; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Thus, the Board finds the Veteran’s September 2017 claim was not additional evidence and the rating reduction in this case complies with the appropriate due process requirements. Further, based on the objective medical evidence as well as the subjective lay evidence, the Board finds that the symptoms of the Veteran’s prostate cancer did not warrant a rating in excess of 20 percent prior to February 10, 2020. The evidence of record does not reflect that the Veteran’s voiding dysfunction required the wearing of absorbent materials which needed to be changed two to four times per day; caused a daytime voiding interval of less than one hour or awakening to void five or more times per night; or caused urinary retention requiring intermittent or continuous catherization. See 38 C.F.R. § 4.115a. Resolving all reasonable doubt in the Veteran’s favor, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that a 60 percent rating is warranted for the Veteran’s prostate cancer from February 10, 2020. In February 2020, the VA examiner noted that the Veteran’s voiding dysfunction caused increased urine leakage requiring absorbent material which needed to be changed less than 2 times per day; increased urinary frequency with a daytime voiding interval between 1 and 2 hours and nighttime awakening to void 5 or more times; and signs or symptoms of obstructive voiding with a slow stream. In April 2020, the Veteran stated that he misunderstood the examiner, and mistakenly stated that he had to change his absorbent material less than 2 times per day. The Veteran competently and credibly clarified that he wore an absorbent material which he changed 2 or more times per day, and a urinal bag, which was attached to the inside of the absorbent material, and which he would change 5 times a day without changing the outside absorbent material. See Washington, supra; Jandreau, supra; Baldwin, supra; Guerrieri, supra. The Veteran’s statement supports a finding that the symptoms of the Veteran’s prostate cancer warrants a 60 percent rating due to a voiding dysfunction, which required the use of absorbent materials that needed to be changed more than four times per day. 38 C.F.R. § 4.115a. Thus, the Board finds that a 60 percent rating is warranted for the Veteran’s prostate cancer from February 10, 2020; the date of the VA examination, wherein the Veteran reported that he needed to change his absorbent material less than 2 times per day, later clarified by the Veteran as explained above. (Continued on the next page)   For the reasons set forth above, the Board finds that the preponderance of the evidence does not support a finding that a rating in excess of 20 percent is warranted for the Veteran’s prostate cancer prior to February 10, 2020. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a 60 percent rating is warranted for the Veteran’s prostate cancer from February 10, 2020. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.