Citation Nr: 21009092 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-46 531 DATE: February 18, 2021 ORDER The reduction in disability rating from 100 percent to 20 percent from December 1, 2013 forward for residuals of prostate cancer was proper; the claim is denied. Entitlement to a disability rating in excess of 20 percent from December 1, 2013 through January 2, 2018 for residuals of prostate cancer is denied. Entitlement to a disability rating of 40 percent, and no higher, from January 3, 2018 through September 10, 2019 for residuals of prostate cancer is granted. FINDINGS OF FACT 1. From December 1, 2013 to January 2, 2018, the medical evidence of record shows that the Veteran’s prostate cancer was in remission and that his residuals were manifest, at most, by a voiding dysfunction that caused urinary leakage but did not require the wearing of absorbent materials, daytime voiding interval between 2 and 3 hours, nighttime awakening to void 3 to 4 times, and slow, weak stream. 2. From January 3, 2018 to September 10, 2019, the medical evidence of record shows that the Veteran’s prostate cancer was in remission and that his residuals were manifest, at most, by a voiding dysfunction that caused urine leakage requiring absorbent material that must be changed 2 to 4 times per day, daytime voiding interval between 2 and 3 hours, nighttime awakening to void 2 times, and obstructed voiding with a slow or weak stream with decreased force of stream. CONCLUSIONS OF LAW 1. The reduction of the rating for prostate cancer from 100 percent to 20 percent effective December 1, 2013 was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for Entitlement to a disability rating in excess of 20 percent from December 1, 2013 through January 2, 2018 for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria to a disability rating of 40 percent, and no higher, from January 3, 2018 through September 10, 2019 for residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to August 1968, including service in the Republic of Vietnam from February 1967 to February 1968. This case was last before the Board in June 2019 at which time they were remanded for further development. The Board finds that there has been substantial compliance with its remand directives and that the matters are now properly before the Board. See, Stegall v. West, 11 Vet. App. 268, 271 (1998). In a September 2020 rating decision, the RO increased the evaluation of the Veteran’s residuals of prostate cancer to 100 percent effective September 11, 2019. In this decision, the RO also granted entitlement to special monthly compensation based on housebound criteria effective September 11, 2019. 1. Whether the reduction in disability rating from 100 percent to 20 percent from December 1, 2013 forward for residuals of prostate cancer was proper. 2. Entitlement to a disability rating in excess of 20 percent from December 1, 2013 through September 10, 2019 for residuals of prostate cancer. 3. Entitlement to a disability rating in excess of VA received the Veteran’s claim for increase for his prostate cancer, then rated at 20 percent, on January 31, 2013. In an October 2015 rating decision, the RO granted an increase from 20 percent to 100 percent, effective December 12, 2012, and then an evaluation of 20 percent from December 1, 2013 forward. Recently, in a September 2020 rating decision, the RO granted an increase from 20 percent to 100 percent, effective September 11, 2019. The Board notes that the Veteran’s service-connected erectile dysfunction has been evaluated separately and is not for consideration in evaluating the Veteran’s residuals of prostate cancer. At all times relevant to this appeal, the Veteran’s residuals of prostate cancer are rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 for malignant neoplasms of the genitourinary system. DC 7528 provides a 100 percent disability rating for malignant neoplasms of the genitourinary system (such as the Veteran’s prostate cancer). The criteria provide that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination being performed every six months. Any change in the assigned disability rating based upon such examinations are to be made subject to the provisions of 38 C.F.R. § 3.105 (e). DC 7528 further instructs that if there has been no local reoccurrence or metastasis, the disability is to be rated based upon residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Under the criteria for voiding dysfunction, disability requiring the use of absorbent materials which must be changed less than twice a day warrants a 20 percent disability rating. A 40 percent disability rating is assigned for disabilities marked by the wearing of absorbent materials which must be changed two to four times per day. A maximum schedular 60 percent disability rating is assigned for disabilities requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. See 38 C.F.R. § 4.115a. Under the criteria for urinary frequency, a 10 percent evaluation is appropriate when the condition is manifested by daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is appropriate when the condition is manifested by daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A maximum rating of 40 percent is appropriate when the condition is manifested by daytime voiding interval less than one hour, or; awakening to void five or more times per night. See 38 C.F.R. § 4.115a. Under the criteria for obstructed voiding, a 10 percent evaluation is appropriate when the condition is manifested by marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream), with any one or combination of: 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; or stricture disease requiring periodic dilation every 2 to 3 months. A maximum rating of 30 percent is appropriate when the condition is manifested by urinary retention requiring intermittent or continuous catheterization. See 38 C.F.R. § 4.115a. The effective dates for staged ratings are established using the principle set forth at 38 C.F.R. § 3.400 (o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In determining when an increase is “factually ascertainable,” look to all the evidence including testimonial evidence and expert medical opinions as to when the increase took place. VAOPGCPREC 12-98. A March 2012 private treatment record notes the Veteran “has no real urinary problems.” Neither dysuria nor hematuria were noted. His erection ability was described as poor. It was noted that, clinically, there was no evidence of disease but slightly elevated PSA. A September 2012 private treatment record notes the Veteran has a PSA of 2.1. Neither hematuria nor dysuria were noted, though poor erection ability was. It was noted that, clinically, there is no evidence of disease but rising PSA. The doctor stated a suspicion of local recurrence. A November 2012 private treatment record notes the Veteran was advised of the need for a biopsy after an area of suspicion was detected on an MRI. A November 2012 private treatment record notes the Veteran was diagnosed with a stage T1c adenocarcinoma of the prostate and mildly persistent PSA elevation. A December 2012 private treatment record notes the Veteran has a history of adenocarcinoma and a recent PSA of 2.1. It was noted that a review of MRI images revealed a regional in the left anterior zone that was suspicious for prostate cancer. A December 2012 private treatment record notes the Veteran’s stream was “a little slow still.” Minimal hematuria and improving dysuria were noted. He was noted as taking medication until his stream was stable. A December 12, 2012 private pathology report notes the Veteran was diagnosed with adenocarcinoma showing mild treatment effect. In a December 2012 letter, a private physician stated that in September 2012 the Veteran’s PSA rose to 2.1 which led to his undergoing a multiparametric MRI which led to the identification a “highly suspicious” region in the left anterior zone. He further explained that a subsequent biopsy was positive for disease. A January 2013 private treatment record notes the Veteran tolerated cryotherapy well. A “slightly weak stream” was noted, but dysuria and hematuria were not. It was further noted that the Veteran was not on any medication for urination function. He was noted as not being able to achieve a good erection. On January 31, 2013, VA received the Veteran’s claim for an increased disability rating for prostate cancer. A May 2013 private treatment record notes the Veteran has “slight slowing of his urinary stream”, but “no real dysuria and no hematuria.” Occasional urgency was noted, as was nocturia times 1. His erection was noted as poor. A September 2013 private treatment record notes the Veteran’s “urinary status is excellent”, though a “slightly weak stream” was noted. His erection ability was noted as poor. No clinical evidence of disease was noted. A November 2013 private treatment record notes the Veteran’s “only urinary issue is that he has a weaker stream”, but no dysuria or hematuria. Nocturia times 2 was noted. Clinically, no evidence of prostate cancer was noted. His erection ability was described as poor. The Veteran was afforded a VA examination in November 2013. The Veteran reported that after cryogenic surgery in January 2013 his ability to have an erection and an ejaculation completely disappeared. A voiding function that causes urine leakage due to the Veteran’s prostate cancer and its treatment was noted. The wearing of absorbent material was not required. Daytime voiding between 2 and 3 hours was noted, as was nighttime awakening to void 2 times. Markedly slow or weak stream was noted. Erectile dysfunction due to the Veteran’s prostate cancer was diagnosed and it was noted that the Veteran cannot achieve an erection sufficient for penetration and ejaculation, with or without medication. It was further noted that a malignant neoplasm was treated with radiation in April 2004 and with cryogenic therapy in January 2013. The Veteran’s prostate cancer was described as being in remission. At the time the staged rating was assigned in October 2015, the 100 percent rating was based on the RO’s finding that, according to his medical records, the Veteran was diagnosed with recurrent prostate cancer on December 12, 2012 and was successfully treated with cryotherapy on January 17, 2013. Based on the November 2013 VA examination which showed the Veteran’s prostate cancer was in remission, his rating was changed to a 20 percent rating as of December 1, 2013. In light of the foregoing, the Board finds that the procedural requirements governing the discontinuation of the Veteran’s 100 percent prostate cancer evaluation have been satisfied in this case. See 38 C.F.R. §§ 3.105(e), 4.115b, DC 7528. Accordingly, the issue for adjudication involves whether the Veteran’s 100 percent evaluation was properly discontinued. Although an examination was not immediately provided after the six-month period, the Veteran was provided an examination in November 2013, which reflects that his cancer was in remission and that his cryotherapy from January 2013 was successful. See Breland v. Wilkie, 32 Vet. App. 360 (2020). Given that it can be discerned from this examination that the Veteran had no local recurrence or metastasis of his disability, the Board finds that adjustment of the rating from 100 percent to 20 percent as of December 1, 2013 is appropriate. This finding is in compliance with the Note to DC 7528, that, if the examination finds no local recurrence or metastasis, then any cancer residuals are evaluated under § 4.115a based on voiding dysfunction or renal dysfunction, whichever is predominant. Id.; see generally, Tatum v. Shinseki, 26 Vet. App. 443, 447-48 (2014) (explaining the mechanics of §§ 4.115a and 4.115b. The Board will now turn to the Veteran’s disability rating from December 1, 2013 through September 10, 2019. A February 2014 private treatment record notes the Veteran’s “urinary status is good” and has nocturia times 2. It was further noted that the Veteran has a slightly slow stream, but no dysuria or hematuria. No evidence of prostate disease was noted. In a June 2014 letter, the Veteran’s private doctor stated that the Veteran developed a focal recurrence in the prostate in 2012 and was treated with cryotherapy on January 17, 2013. The doctor further stated that the cancer is under control, but that the Veteran does have episodes of rather frequent urination at night, 3 to 4 times. He further described significant erectile dysfunction as a result of the treatment of his prostate cancer, stating that the Veteran “is incapable of achieving sufficient erection for intercourse.” An August 2014 private treatment record notes the Veteran had no significant urinary problems but did have nocturia times 1. Neither dysuria nor hematuria were noted. Poor erectile ability was noted. No clinical evidence of disease was noted. The Veteran was afforded a VA examination in October 2014. A voiding dysfunction that does not cause leakage or increased urinary frequency was noted. A slow or weak stream was noted. Erectile dysfunction was noted as a residual of prostate cancer. It was noted that the Veteran is unable to maintain an erection sufficient for penetration and ejaculation. No penile or testicular examination was performed. It was further noted that his prostate cancer was in remission. In his December 2015 appeal to the Board, the Veteran asserted that at his last doctor visit on October 1, 2015, he advised his doctor that he was experiencing incontinence and had lost bladder control on 4 or 5 occasions. The Veteran then stated that he was referred to Dr. Green who, on October 20, 2015, prescribed him Tamsulosin and Myrbetriq. The Veteran was afforded a VA examination in August 2016. Erectile dysfunction was noted. A voiding dysfunction that causes urinary leakage but does not require the wearing of absorbent materials was noted. Daytime voiding interval between 2 and 3 hours was noted, as was nighttime awakening to void 3 to 4 times. Slow, weak stream was noted. Physical examination of the penis and testes was not performed. The Veteran’s prostate cancer was noted as being in remission. In a November 27, 2017 letter, the Veteran’s private doctor stated that since February 2016, the Veteran’s PSA has again become detectable and as of September 28, 2017 is .19, which is “consistent with microscopic recurrence of his prostate cancer.” The doctor then stated that the Veteran’s PSA is still “relatively low” and that staging imaging “will almost certainly be negative for grossly metastatic or recurrent disease.” She further stated that further salvage focal treatments are not being planned at this time. In a January 3, 2018 private Disability Benefits Questionnaire (DBQ), the Veteran’s doctor noted diagnoses of urge incontinence (October 2015), urinary urge (October 2015) and erectile dysfunction (December 2012). She later stated that in February 2016, the Veteran’s PSA nadir was greater than .09, has risen since then and is “concerning for recurrence again.” She then indicated that the status of the Veteran’s prostate cancer is active. Voiding dysfunction that causes urine leakage and requires absorbent material that must be changed 2 to 4 times per day was noted. Daytime voiding interval between 2 and 3 hours, as well as nighttime awakening to void 2 times was noted. Obstructed voiding with a slow or weak stream with decreased force of stream was noted. It was also noted that a June 2017 PSA test showed .14. The Veteran was afforded a VA prostate cancer examination in September 2019. It was noted that the Veteran’s prostate cancer was currently active. A Voiding dysfunction causing urine leakage that requires absorbent material which must be changed more than 4 times per day was noted. Daytime voiding interval between 2 and 3 hours was noted as was nighttime awakening to void 2 times. Hesitancy, slow and weak stream with decreased force of stream were noted. VA obtained an independent medical opinion regarding the status of the Veteran’s prostate cancer in August 2020. The examiner stated that the letter from Dr. J. Joy Lee does not appear to confirm a diagnosis of recurrent prostate cancer, noting that the wording of the letter “appears to obscure the Veteran’s current status at this time, there the lack of current treatment was considered in rendering an opinion to support an “inactive” status at this time.” From December 1, 2013 through January 2, 2018, the Board finds that the medical evidence of record shows that the Veteran’s prostate cancer was in remission and that his residuals were manifest, at most, by a voiding dysfunction that caused urinary leakage but did not require the wearing of absorbent materials, daytime voiding interval between 2 and 3 hours, nighttime awakening to void 3 to 4 times, and slow, weak stream. As such, the Board finds that the Veteran’s residuals of prostate cancer from December 1, 2013 through January 2, 2018 more closely resemble that contemplated by 20 percent, and no more, under the criteria for voiding dysfunction. The Board notes that a higher disability rating is not available under the criteria for obstructed voiding or urinary frequency. In denying a rating higher than 20 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board notes that the private treating physician’s use of the term “concerning for recurrence” tends to not support a conclusion that the Veteran’s cancer is active, especially in light of the previous letter from the same doctor wherein she states that imaging studies would “almost certainly be negative”. Finally, the Board notes that this medical evidence does not show that any treatment for prostate cancer had been planned or afforded to the Veteran since 2013. As such, and in conjunction with the August 2020 independent medical opinion, the Board finds that the evidence of record does not reveal the recurrence of prostate cancer such as to warrant a 100 percent evaluation under DC 7528. However, from January 3, 2018 through September 10, 2019, the Board finds that the medical evidence of record shows that the Veteran’s prostate cancer was in remission and that his residuals were manifest, at most, by a voiding dysfunction that caused urine leakage requiring absorbent material that must be changed 2 to 4 times per day, daytime voiding interval between 2 and 3 hours, nighttime awakening to void 2 times, and obstructed voiding with a slow or weak stream with decreased force of stream. As such, the Board finds that the Veteran’s residuals of prostate cancer from January 3, 2018 through September 10, 2019 more closely resemble that contemplated by 40 percent, and no more, under the criteria for voiding dysfunction. (Continued on the next page)   The Board notes that a higher disability rating is not available under the criteria for obstructed voiding or urinary frequency. In denying a rating higher than 40 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.