Citation Nr: 21005477 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 19-35 304 DATE: February 1, 2021 ORDER Entitlement to restoration of a 100 percent disability rating for service-connected prostate cancer is denied. Entitlement to a disability rating in excess of 20 percent for service-connected prostate cancer from September 1, 2015 to December 01, 2016, and greater than 40 percent since December 2, 2016, is denied. FINDINGS OF FACT 1. In June 2014, the Regional Office (RO) notified the Veteran of a proposed rating reduction in the disability rating for the service-connected prostate cancer from 100 percent to 20 percent; a June 2015 rating decision reduced the disability rating for the service-connected prostate cancer from 100 percent to 20 percent, effective September 1, 2015. 2. A December 2019 rating decision increased the disability rating from 20 percent to 40 percent effective December 2, 2016. 3. The probative medical evidence of record shows no recurrence of cancer or metastasis, and the Veteran’s most recent VA examination in June 2014 showed that the Veteran’s cancer was in remission. 4. From September 1, 2015 to December 1, 2016, the objective medical evidence demonstrates that the Veteran’s residuals of prostate cancer were predominantly manifested by urinary frequency of daytime voiding interval between one and two hours, and night-time voiding of three to four times at night, with obstructed voiding that is not characterized as marked. 5. From December 2, 2016, the objective medical evidence demonstrates that the Veteran requires the wearing of absorbent materials which must be changed two to four times per day; manifested by urinary frequency of daytime voiding interval between one and two hours, and night-time voiding of three to four times at night, with obstructed voiding that is not characterized as marked. CONCLUSIONS OF LAW 1. The reduction of the 100 percent rating for prostate cancer was proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for a disability rating in excess of 20 percent for residuals of prostate cancer, from September 1, 2015 to December 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a disability rating in excess of 40 percent for residuals of prostate cancer, from December 2, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to August 1966. This case comes to the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) RO. The Veteran’s July 2015 notice of disagreement stated that he was disagreeing with the reduction of the rating for prostate cancer residuals, but subsequent RO adjudications considered both the validity of the reduced rating and whether any increased ratings were warranted since September 1, 2015. The Board therefore finds that both a claim to restore the reduced rating and a claim for an increased rating for prostate cancer residuals are currently on appeal. Entitlement to an increased rating for residuals of prostate cancer Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, 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 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes. However, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). In August 2007, the RO granted the Veteran’s service connection claim for prostate cancer, assigning a 100 percent disability rating effective as of April 17, 2007. Private medical treatment records dated from April 2008 had shown that the Veteran was diagnosed with prostate cancer and endured a radical prostatectomy. The June 2014 VA examination report shows that the Veteran had completed treatment, and his prostate cancer was said to have been in remission. It was indicated that the prostate cancer treatment had resulted in voiding dysfunction which did not result in the use of absorbent material or the use of an appliance. There was daytime voiding interval between one and two hours. He would awaken to void three to four times at night. The voiding dysfunction resulted in signs or symptoms of obstructive voiding, to include a slow or weak stream and decreased force of stream. There was no history of recurrent symptomatic urinary tract or kidney infections. The prostate cancer did not impact the Veteran's occupational functioning. The Veteran was initially assigned a 100 percent disability rating pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528, which provides for malignant neoplasms of the genitourinary system. The note following this diagnostic code provision indicates that, following the cessation or surgery, chemotherapy, or other therapeutic procedure, a 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 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, then the Veteran’s cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The evidence shows that the Veteran received no surgery, chemotherapy, or other therapeutic procedure for prostate cancer after 2007. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in the disability rating of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First there must be a rating action proposing the reduction, and giving the Veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). The Veteran was notified of the RO’s intent to reduce the 100 percent disability rating for the service-connected prostate cancer by rating actions dated in June 2014, which was sent accompanied by respective notice letters. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. 38 C.F.R. §§ 3.105 (e), (i). Final action to reduce the 100 percent disability rating to 20 percent was taken pursuant to 38 C.F.R. § 3.105 (e) in June 2015. The reduction was made effective beginning September 1, 2015. Based on a review of this procedural history, it appears that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner than permitted by current law and regulations (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105 (e). The Veteran has not contended that these provisions were not complied with, or that he was receiving any additional treatment for prostate cancer after September 1, 2015. Therefore, all of the evidence is in favor of a finding that the reduction from 100 percent was proper. As noted above, Diagnostic Code 7528 directs that if there has been no local recurrence or metastasis, then the Veteran’s cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The rating criteria for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a. In this case, as the evidence suggests that voiding dysfunction is the predominant disability, and as there is no evidence of renal dysfunction, further discussion of the associated regulations is not necessary. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. In this regard, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent disability rating. Where such requires the wearing of absorbent materials which must be changed two-to-four times per day, a 40 percent disability rating is warranted. Where such requires the wearing of absorbent materials which must be changed less than two times per day, a 20 percent disability rating is warranted. Urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent disability rating. A daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent disability rating. A daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent disability rating. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent disability rating. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two-to-three months, warrants a 10 percent disability rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year.\ As noted above, during the Veteran’s June 2014 VA examination, he denied any renal dysfunction and stated that daytime voiding interval was between two and three hours, and that he would awaken to void three to four times at night. Voiding dysfunction did not result in the use of absorbent material or an appliance. In light of the foregoing, the Board finds that the 20 percent disability rating assigned from September 1, 2015 to December 1, 2016 for the service-connected prostate cancer following the reduction from 100 percent is appropriate as the evidence failed to show that he has any renal dysfunction; urine leakage requiring the wearing of absorbent materials requiring changing two to four times per day; urinary frequency with daytime interval of less than one hour or awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization. There is no other evidence which is contradictory to the findings of the June 2014 VA examination, nor did the Veteran assert during this time that he had additional symptoms than those considered at the examination. The examination findings are also consistent with the Veteran’s written statement from July 2015, that he had urine leakage and got up three to four times a night to urinate. The medical evidence of records shows as of December 2, 2016 the Veteran required the use of absorbent materials that required changing three or four times per day. His VA treatment records show that on December 2, 2016, he called VA to request absorbent liners because his urine was leaking through. It was noted that the Veteran should be able ot obtain Depends through VA and just had to provide the size requested. In light of these facts, the Board finds that the 40 percent disability rating assigned from December 2, 2016, for the service-connected prostate cancer is appropriate; a rating higher than 40 percent is not warranted, however, as the evidence fails to show that he has any renal dysfunction; or urine leakage requiring the wearing of absorbent materials requiring changing more than four times per day. The Board has also considered the effective date that has been assigned for the Veteran’s increased 40 percent rating. The effective date for an increased rating should be based on the medical evidence showing when the increase in the level of disability actually occurred. See 38 C.F.R. § 3.400(o)(2). Effective dates should not be mechanically assigned based solely on the date of the VA examination, but should include consideration of all of the facts to determine the date that the increase in disability was ascertainable. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In this case, the increased rating was based on a VA treatment records which showed that the Veteran was requesting absorbent pads on December 2, 2016. There is no medical evidence in the period prior to this that the Veteran was using absorbent pads, nor did the Veteran assert this during that period. In the absence of any other evidence indicating that the Veteran’s disability underwent a worsening from September 1, 2015 to December 1, 2016, the Board is unable to assign an earlier effective date for the increased rating. The Board has considered the Veteran’s statements regarding his erectile dysfunction. Here, the Veteran is already in receipt of special monthly compensation for the loss of use of a creative organ based upon the grant of service connection for erectile dysfunction. The law does not provide for a higher rate of special monthly compensation for the loss of use of a creative organ. 38 U.S.C. § 1114(k). Special monthly compensation rates are determined by statute and are not subject to the Board’s discretion; rather, the Board is specifically prohibited from granting benefits that are not authorized by law. See 38 U.S.C. § 7104 (c); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board has considered the statements of the Veteran as to the extent of his current residuals of prostate cancer. He is certainly competent to report that his symptoms have worsened. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board also acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this regard, the Veteran does not allege that he has been unable to work as a result of his prostate cancer during the period on appeal. Therefore, the Board finds that the question of entitlement to TDIU has not been raised by the record. See Rice, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). (Continued on the next page)   For the foregoing reasons, the Board finds that the reduction from 100 percent to 20 percent for the Veteran’s service-connected prostate cancer was appropriate, and he is not entitled to the assignment of a disability rating greater than 20 percent from September 1, 2015 to December 01, 2016, or greater than 40 percent since then. The benefit-of-the-doubt doctrine has been considered, but the preponderance of the evidence weighs against the assignment of any higher ratings. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, 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.