Citation Nr: 21009736 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-58 753A DATE: February 23, 2021 ORDER Entitlement to a 40 percent for prostate cancer, status post prostatectomy, is granted. Entitlement to a rating in excess of 50 percent for left side homonymous hemianopsia is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to December 4, 2019, and in excess of 20 percent as of December 4, 2019, for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for left knee meniscal tear is remanded. FINDINGS OF FACT 1. During the entire appeal period, the evidence indicates that the Veteran experienced residuals of prostate cancer status post prostatectomy including urinary incontinence requiring the use of absorbent materials that needed to be changed 2 to 4 times per day; there is no evidence of appliance use. 2. During the entire appeal period, the Veteran’s eye disability manifested in left side homonymous hemianopsia; and visual acuity of 20/40 or better in both eyes. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for prostate cancer, status post prostatectomy, have been met during the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.115a, 4.115b, DC 7528-7527 (2020). 2. The criteria for a rating in excess of 50 percent for left side homonymous hemianopsia have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6080 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to December 2010. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2015rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a September 2019 hearing. A transcript of that hearing is of record. The issues were previously remanded y the Board in September 2019. The Board notes that the Veteran appealed the assigned rating for the service connected arthritis of the left knee. The Veteran has also been granted separate ratings for instability of the left knee and meniscal tear of the left knee. The Board considers all related symptomatology of the left knee to be encompassed by the claim for an increased rating for arthritis of the left knee. As such, the issues of entitlement to an increased rating for instability of the left knee and meniscal tear of the left knee have been added to the decision herein. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Prostate cancer, status post prostatectomy The Veteran contends that a higher rating is warranted for residuals of prostate cancer, specifically voiding dysfunction and urinary incontinence. Prostate cancer was diagnosed in 2010, and the Veteran underwent prostatectomy. The cancer is in remission, and residuals of prostate cancer are currently rated based on urinary frequency under 38 C.F.R. §§ 4.115a, 4.115b, DC 7528-7527. The Board notes that residuals include erectile dysfunction, however, the Veteran has been separately rated for that residual. Malignant neoplasms of the genitourinary system warrant a 100 percent rating. 38 C.F.R. § 4.115b, DC 7528. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent continues with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, VA regulations direct that residuals of prostate cancer be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination. 38 C.F.R. § 4.115a. VA regulations provide descriptions of various levels of disability in specific symptom areas. Where diagnostic codes refer the decision maker to those specific areas’ dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described in the regulations do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. Accordingly, the Board considers the applicability of the last part of DC 7528, which instructs that if there has been no recurrence or metastasis, to rate on residuals of voiding dysfunction or renal dysfunction, whichever is prominent. A review of the record shows no complaints, diagnoses, or treatment for renal dysfunction or urinary tract infections. Rather, the evidence of record demonstrates that voiding dysfunction was the predominant symptom of residuals of prostate cancer during the period on appeal. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence: requiring the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent rating. When requiring the wearing of absorbent materials which must be changed two to four times per day, the urine leakage warrants a 40 percent rating. When requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, the urine leakage warrants a 60 percent rating. 38 C.F.R. § 4.115a. Urinary frequency with daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. Urinary frequency with daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. Urinary frequency with daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115a. March 2014 VA medical records indicate that the Veteran had urinary incontinence, requiring 3 “briefs” per day. In a March 2015 VA medical record, the Veteran reported wearing absorbent materials when he leaves the house, and experiencing nocturia with awakenings 3 to 4 times per night. At a March 2015 VA examination, the Veteran reported voiding dysfunction which causes urine leakage requiring absorbent materials be changed 2 to 4 times per day. He also reported increased urinary frequency with a daytime interval of 2 to 3 hours, and nighttime awakening to void 2 times per night. There was no evidence of obstructed voiding or appliance use. At February 2018 VA examination, the Veteran reported voiding dysfunction which causes urine leakage requiring absorbent materials be changed 4 or more times per day. He also reported increased urinary frequency with a daytime interval of 2 to 3 hours, and nighttime awakening to void 5 or more times per night. There were no signs or symptoms of obstructed voiding nor appliance use. At a December 2019 VA examination, the Veteran reported voiding dysfunction which causes urine leakage requiring absorbent materials be changed 2 to 4 times per day. He also reported increased urinary frequency with a daytime interval of less than 1 hour, and nighttime awakening to void 3 to 4 times per night. There were no signs or symptoms of obstructed voiding nor appliance use. Functional impact was found in the form of the need for frequent restroom breaks. Based on a review of the medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a 40 percent rating is warranted for voiding dysfunction during the entire appeal period. There is evidence of record prior to the effective date of March 14, 2015, or the VA examination, which indicates that the Veteran changed absorbent materials 3 times per day. The evidence, however, does not support a rating higher than 40 percent at any time during the appeal period. There is no indication that the Veteran required the use of an appliance or the wearing of absorbent materials that had to be changed more than four times a day. The Board notes that a 40 percent rating is the highest rating available under urinary frequency. 38 C.F.R. § 4.115a. Thus, there is no basis to grant a rating higher than 40 percent at any time during the appeal period. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected residuals of prostate cancer, the evidence shows no distinct periods of time during the appeal period when the Veteran’s symptoms varied to such an extent that a rating greater than 40 percent would be warranted. Fenderson v. West, 12 Vet. App. 119 (1999). In summary, the Board has considered the benefit of the doubt doctrine and finds that the preponderance of the evidence supports no more than a 40 percent rating for the Veteran’s disability. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Left side homonymous hemianopsia The Veteran contends that his visual field defect, status post stroke, warrants a higher rating. The Veteran’s left side homonymous hemianopsia (hereinafter “eye disability”) has been assigned a 50 percent rating under DC 6080, for visual field defects. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Evaluation of visual field is based on the remaining field of vision in each eye. Under DC 6080, homonymous hemianopsia warrants a maximum 30 percent rating. A 10 percent rating is warranted for unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; bilateral contraction of the visual field with remaining field of 46 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. A 20 percent rating is warranted for unilateral concentric contraction of the visual field with remaining visual field of 6 to 15 degrees. A 30 percent is warranted for unilateral concentric contraction of the visual field with remaining visual field of 5 degrees; or bilateral contraction of the visual field with remaining field of 31 to 45 degrees. Normal visual field extant at eight principle meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77 (a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 50 percent is warranted for the Veteran’s eye disability. The evidence indicates that subsequent to having a stroke, the Veteran developed left sided homonymous hemianopsia, or the loss of the left side of the visual field in both eyes. The condition has remained stable since onset, with no reported or indicated change. VA examinations in March 2015, May 2015, October 2015, and December 2019 all document the presence of loss of visual field or visual field defect in the form of left sided homonymous hemianopsia, noting it has remained stable. While other eye conditions were noted at various points during the appeal period, none were found to be related to service or the Veteran’s service-connected disabilities, and further, none were found to be visually significant. At all VA examinations, visual acuity for corrected distance vision was found to be 20/40 or better in both eyes. No scarring or disfigurement was found at any VA examination. Nor was there any evidence indicating that the Veteran experiences incapacitating episodes due to the eye disability. Other VA and private medical records are consistent with the VA examination reports, indicating a history of left sided homonymous hemianopsia status post stroke, which has remained stable since onset. Visual acuity was also found to be normal, remaining 20/40 or better bilaterally. The evidence indicates stable homonymous hemianopsia since onset, with normal visual acuity. While DC 6080 allows for the assignment of higher ratings for bilateral contraction of visual fields with remaining fields of less than 30 degrees, the code is clear that homonymous hemianopsia should be assigned a maximum 30 percent rating. In the absence of other visual impairment or defect, an increased rating is not warranted, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent prior to December 4, 2019, and in excess of 20 percent as of December 4, 2019, for a lumbar spine disability 4. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis 5. Entitlement to a rating in excess of 10 percent for left knee instability 6. Entitlement to a 20 percent rating, but no higher, for left knee meniscal tear After the Board’s remand of September 2019, the Veteran was afforded VA examinations for his service connected lumbar spine and left knee that same month. However, the examinations do not comply with the Board’s request. In the Board remand, it was requested that if pain was noted on range of motion testing, that the exact point where pain was first noted had to be clearly noted. While pain was noted during range of motion testing for both the lumbar spine and left knee, the exact point at which pain was first noted during range of motion testing was not noted. Therefore, functional impairment cannot be properly assessed and a new VA examination is needed. See Correia v. McDonald, 28 Vet. App. 158 (2016). As the new examination could yield evidence relevant to the issue of the rating for instability of the left knee, that issue will be deferred until the requested development is completed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his back and left knee disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all back and left knee pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted during range of motion testing, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.