Citation Nr: 21010073 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-31 136A DATE: February 24, 2021 ORDER From May 20, 2013 to October 17, 2017, entitlement to a 40 percent rating for the residuals of prostate cancer is granted. REMANDED From May 20, 2013 to October 17, 2017, entitlement to a rating greater than 40 percent for the residuals of prostate cancer is remanded. From October 18, 2017, entitlement to a rating greater than 60 percent for the residuals of prostate cancer is remanded. From May 20, 2013, entitlement to a rating greater than 0 percent for erectile dysfunction is remanded. REFERRED The issue of entitlement to service connection for hypertension was raised in the September 2015 VA Form 9 that the Veteran used to perfect this appeal. It is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT From May 20, 2013 to October 17, 2017, the Veteran’s predominant residual of prostate cancer was voiding dysfunction. It caused the Veteran to awaken five or more times per night to void. CONCLUSION OF LAW From May 20, 2013 to October 17, 2017, the criteria for a 40 percent rating for voiding dysfunction have been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1969 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by an AOJ of the Department of Veterans Affairs (VA). The Veteran perfected his appeal via a September 2015 VA Form 9. He declined a Board hearing in this document. The AOJ, in turn, certified the Veteran's appeal to the Board in August 2018. The Board notified the Veteran of this certification that same month. In January 2021 and February 2021, the Veteran's representative notified the Board that the Veteran now desired a Board hearing. Under 38 C.F.R. § 20.1305, a request for a hearing must come within 90 days following the mailing of notice that the appeal has been certified and transferred to the Board. Here, the Veteran’s representative requested a hearing over two years after transfer and certification. The Board finds the hearing requests are untimely, and there is no good cause justification to waive the untimely requests. Therefore, the Board will not accept the hearing requests. Issue: From May 20, 2013 to October 17, 2017, entitlement to rating greater than 20 percent for the residuals of prostate cancer Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Background Law Two Diagnostic Codes, 7528 and 7527, are relevant to this appeal. First, Diagnostic Code 7528, malignant neoplasms of the genitourinary system, provides one disability level (100 percent) for active disease. A Note to that Code states that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local recurrence or metastasis, a veteran’s cancer is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Second, Diagnostic Code 7527 provides that prostate gland injuries, infections, hypertrophy, and post-operative residuals are to be rated as urinary tract infection or voiding dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. VA, in turn, rates voiding dysfunction under 38 C.F.R. § 4.115a as urine leakage, urinary frequency, or obstructed voiding. For urinary tract infections (UTI), long-term drug therapy, 1 to 2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent evaluation. For recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management, a 30 percent rating is warranted. If the UTI manifests as "poor renal function," VA rates the UTI as renal dysfunction. Id. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, and stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day. When there is leakage requiring the wearing of absorbent materials that must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When the Veteran’s condition requires the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day, a 60 percent evaluation is warranted. Id. For urinary frequency, a 10 percent evaluation is warranted for a daytime voiding interval between two and three hours, or awakening to void two times per night; a 20 percent rating is warranted for a 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 a daytime voiding interval less than one hour, or awakening to void five or more times per night. Id. Obstructed voiding includes ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cc; (2) uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent UTIs secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. Merits The Veteran, to treat his prostate cancer, had a radical prostatectomy in August 2007. Almost six years later, the Veteran, on May 20, 2013, claimed service connection for the residuals of prostate cancer. VA examined the Veteran in October 2013. The AOJ, based on this examination, service connected the residuals of the Veteran's prostate cancer in January 2014. It rated them as 20 percent disabling based on urinary frequency, effective May 20, 2013. The Veteran appealed the rating the AOJ assigned in May 2014. As the appeal was pending, VA examined the Veteran on October 18, 2017. Based on this examination, the AOJ, in December 2017, increased the Veteran's rating to 60 percent disabling, effective October 18, 2017. The AOJ found the Veteran's residuals now manifested as urine leakage requiring the Veteran to wear absorbent materials that he must change more than 4 times per day. The Board highlights the aforementioned VA examinations as well as the Veteran's September 2015 VA Form 9. The October 2013 examiner found the Veteran had voiding dysfunction. This voiding dysfunction caused increased urinary frequency, but it did not cause urine leakage. Moreover, the examiner reported the urinary frequency manifested as nighttime awakening to void 3 to 4 times. The Veteran, in his May 2014 Notice of Disagreement, did not specifically contest the findings of the October 2013 VA examination. However, in his September 2015 VA Form 9, he reported that he has "to wake up every hour between 9 pm and 3 am, sometimes more" frequently to urinate. As this translates to awakening to void five or more times per night, the Board finds the Veteran merits a 40 percent rating from May 20, 2013 to October 17, 2017. REASONS FOR REMAND The Board finds remand is warranted. The Board has bifurcated the issue of entitlement to an increased rating for the period from May 20, 2013 to October 17, 2017 because it possessed evidence that allowed the immediate award of an increased rating. However, it has also remanded the issue because it is remanding other portions of the appeal. Specifically, the October 2017 VA examiner stated that "no records were reviewed" under the "Evidence Review" section of the reports generated for the evaluation of the Veteran's prostate cancer residuals and erectile dysfunction. This prevents the Board from deciding the Veteran's rating. In particular, the Veteran, in his September 2015 VA Form 9, contends that his residuals cause him to "have intermittent catherization and renal dysfunction and … hypertension." Because the examiner did not review the records, it is not clear how he concluded in sections 5 and 8 of the prostate cancer report that the Veteran's residuals did not include urinary tract infections or renal dysfunction. As such, the Board finds new examinations are warranted for the prostate cancer residuals and erectile dysfunction. As noted above, the AOJ, in December 2017, increased the Veteran’s rating to 60 percent disabling, effective October 18, 2017. The AOJ found the Veteran’s residuals now manifested as urine leakage requiring the Veteran to wear absorbent materials that he must change more than 4 times per day. The Veteran may wish to consult with his representative to submit a statement to explain to the Board when this particular manifestation of his disability – the wearing of absorbent materials that he must change more than 4 times per day – began. The matters are REMANDED for the following action: 1. Obtain all VA treatment records from the North Texas VA Healthcare System from September 2013 to present. 2. Ask the Veteran to submit any private, non-VA medical evidence not already of record that he wants the AOJ to consider, or in the alternative, to submit release forms so that VA may attempt to obtain these records for him. 3. Schedule the Veteran for examinations to determine the nature and severity of the Veteran's prostate cancer residuals and erectile dysfunction. The examiner should expressly address the Veteran's contentions in his September 2015 VA Form 9, that his residuals cause him to “have intermittent catherization and renal dysfunction and … hypertension.” The examiner should explain if the Veteran's contentions are accurate, and if so, the circumstances, including when these residuals manifested. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.