Citation Nr: 21012875 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 11-03 757 DATE: March 5, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to herbicide exposure, is denied. For the period since November 1, 2010, a higher rating of 60 percent for residuals of prostate cancer is granted. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s COPD was incurred in service or is otherwise related to service. 2. For the period since November 1, 2010, the Veteran has experienced a voiding dysfunction, which has required the wearing absorbent materials which must be changed five or more times per day.   CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 2. For the period since November 1, 2010, the criteria for entitlement to a higher rating of 60 percent are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from two August 2010 rating decisions. In March 2013, the Veteran and his spouse testified before the undersigned at a Board hearing. A transcript is of record. In July 2019, the Board remanded the Veteran’s appeal for additional development. As explained in the introduction to the Board’s July 2019 remand, the Board previously adjudicated both issues on appeal in November 2016 and July 2017 decisions. These decisions, however, were vacated by the United States Court of Appeals for Veterans Claims (Court) pursuant to a September 2018 Memorandum Decision (COPD) and a November 2018 Joint Motion for Partial Remand (JMPR) (prostate rating). 1. Entitlement to service connection for chronic obstructive pulmonary disease, to include as secondary to herbicide exposure, is denied. The Veteran has a diagnosis of COPD and alleges that it is due to exposure to Agent Orange during service. His service records confirm service in Vietnam; therefore, exposure to herbicide agent is presumed. At the outset, the Board notes that presumptive service connection for COPD due to herbicide exposure in not warranted as the condition is not included in the list of diseases associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Therefore, service connection for COPD is not warranted on a presumptive basis due to exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing, the Board will consider the claim on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service treatment records show that the Veteran sought treatment for a chest cold, including the symptom of a slight wheeze, in June 1966. 04/12/2014, STR-Medical, at 10. More recently, a November 2010 VA emergency room treatment note indicates that the Veteran was treated for coughing and wheezing. A December 2019 VA examination shows a diagnosis of COPD. Regarding the Veteran’s medical history, the examination report reflects that the Veteran was unable to provide a date of onset. It also indicates that the Veteran used to smoke one pack of cigarettes per day on and off for 30 to 40 years but had quit five years earlier (around 2014). Regarding current symptoms, the Veteran stated that around 3 or 4 years earlier he noticed that he would get winded. The December 2019 VA examiner opined that the Veteran’s COPD is less likely than not related to service. In support of this opinion, the examiner explained that the respiratory episode documented in the service treatment records appeared to have been an acute transient condition that resolved without any residual disability. In this regard, the examiner noted that the Veteran’s separation examination was negative for respiratory symptoms and that the earlier documentation of COPD was a 1999 chest X-ray, more than 30 years after separation for service. The examiner further noted that COPD is not one of the diseases that VA has recognized as associated with herbicide exposure and that the main cause of COPD in developed countries is tobacco smoking. The December 2019 VA opinion shows adequate consideration of the relevant evidence, to include the Veteran’s symptoms in service, and is supported by a medical rationale. Furthermore, the opinion is consistent with the other of evidence of record, which suggests that the Veteran’s current diagnosis of COPD was incurred many years after service and is likely related to his long smoking history. As such, the opinion is worthy of significant probative weight. The Veteran has not submitted any evidence that establishes a nexus between his current symptoms and service. The Board acknowledges the Veteran’s assertion that his current disability is either a progression of symptoms in service or related to his presumed in-service herbicide exposure. Unfortunately, he is not competent to establish a nexus, as this is a medical matter that requires specialized medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the absence of evidence that the Veteran’s current disability was incurred in service or is otherwise related to service, the Board has no choice but to deny the Veteran’s claim of service connection for a respiratory disability. 2. For the period since November 1, 2010, a higher rating of 60 percent for residuals of prostate cancer is granted. From March 23, 2009, to October 31, 2010, an initial 100 percent rating was assigned due to the Veteran’s diagnosis of prostate cancer with active malignancy. Since November 1, 2010, staged ratings are in effect, as follows: a rating of 40 percent for the period prior to December 13, 2018, and a rating of 60 percent for the period since December 13, 2018. These rating have been assigned under Diagnostic Code (DC) 7528, for malignant neoplasms of the genitourinary system. DC 7528 assigns a 100 percent for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate criteria based on whichever genitourinary dysfunction predominates. A Note after DC 7528 provides 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. 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 reoccurrence or metastasis, the disability is to be rated on residuals, such as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Under 38 C.F.R. § 3.105(e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. Initially, 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. However, the Board does not find that these provisions are 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) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). In the present case, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. 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. In other words, this is a staged rating case, but it is not a formal reduction case because of the temporal element of Diagnostic Code 7528. In short, the rating reduction in this case was procedural in nature and by operation of law. The Board only must determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under Diagnostic Code 7528. The Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). He underwent an initial VA genitourinary examination in May 2009. Then, the Veteran underwent a review VA examination of his prostate cancer residuals in March 2010. In an April 2010 rating decision, the Veteran’s 100 percent evaluation for that disability was proposed to be reduced to 10 percent on the basis of that examination, based primarily on the March 2010 review examination. The April 16, 2010, notice letter informed the Veteran of his rights, including to a predetermination hearing and to submit additional evidence. The Veteran requested a hearing, which was held in July 2010. The AOJ finalized the discontinuance of the Veteran’s 100 percent evaluation for prostate cancer residuals in an August 2010 rating decision and effectuated the reduction to 10 percent, effective November 1, 2010. As such, the effective date for the discontinuance of the Veteran’s 100 percent evaluation for prostate was October 31, 2010, the last day of the month after expiration of the 60-day period from the date of notice of the August 2010 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran’s 100 percent evaluation for his prostate cancer residuals was appropriately and adequately completed in this case per 38 C.F.R. § 3.105(e). In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 after October 31, 2010. See 38 C.F.R. § 4.7. He is no longer receiving treatment, which is the requirement for a 100 percent disability rating. But the question remains as to whether higher ratings are warranted for residuals of prostate cancer. *** Residuals of prostate cancer are to be rated as voiding dysfunction or renal dysfunction, whichever is dominant. 38 C.F.R. § 4.115b, DC 7528, Note. The criteria for voiding dysfunction assign a maximum 60 percent rating if there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A 40 percent disability rating is assigned for incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 20 percent disability rating is assigned where the incontinence requires wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a. Residuals of prostate cancer can also be rated based on symptoms of renal dysfunction under 38 C.F.R. § 4.115a. In this instance, there is no evidence of any renal dysfunction in the Veteran's medical records or in the Veteran's statements. As such, the issue of renal dysfunction will not be discussed further. The Board, however, will also consider whether an increased rating might be assigned under the criteria for urinary frequency. A 10 percent disability rating is assigned where there is daytime voiding at intervals between two and three hours or awakening to void two times per month. A 20 percent disability rating is assigned where there is daytime voiding at intervals between one and two hours or awakening to void three to four times per night. A 40 percent disability rating is assigned where there is daytime voiding at intervals of less than one hour or awakening to void five or more times per night. 38 C.F.R. § 4.115a. *** The March 2010 VA examination reflects that the Veteran had a good response after his August 2009 radical prostatectomy. The Veteran reported voiding without difficulty. Urinary and renal functions were within normal limits. PSA was less than 0.1. At a July 2010 DRO hearing, the Veteran testified that he went to the bathroom five or six times during the day, and that he had urinary leakage, for which he sometimes wore absorbent material. His spouse indicated that the Veteran used absorbent material less often than necessary. The Veteran stated that he went to the bathroom five or six times per night. A July 2012 VA examination reflects that the Veteran’s prostate cancer was in remission. As noted by the examiner, the Veteran had voiding dysfunction, with urine leakage that requires absorbent material that must be changed two to four times per day. Voiding dysfunction caused increased urinary frequency with a daytime voiding interval between two and three hours, and nighttime awakening to void at a rate of three to four times. It also caused signs or symptoms of obstructed voiding in the form hesitancy and slow or weak stream. No other residuals or complications due to treatment were noted. His surgical scar was not painful, unstable, or greater than 39 square centimeters. At the March 2013 Board hearing, the Veteran testified that he needs to wear absorbent material, which must be changed about three times a day, and, at night, he gets up four or five times per night. His spouse suggested that the Veteran goes to the bathroom more than four or five times per night. She also indicated that she had to put a pad on the bed “and it stills leaks through the night.” The Veteran denied any swelling or edema due to the prostate cancer. VA treatment records document regular follow-up visits to the urologist. A November 2009 urology note shows that the Veteran reported that incontinence was improving. A December 2009 primary care note shows that the Veteran was not wearing brief/liners. A February 2010 urology note reflects that the Veteran was pleased with outcome of surgery and that he denied urinary incontinence. However, urology notes from June 2010, forward, show reports of mild stress urinary incontinence. Primary care notes from 2011, forward, indicate that the Veteran had had some incontinence since his prostate surgery, that he had supplies, but did not need to use them on a regular basis. See VA treatment records received April 29, 2010, and November 26, 2010; CAPRI records, received October 2, 2012 (in Virtual VA) and April 26, 2014. In April 2019, the Veteran submitted copy of a December 2018 VA urological treatment note and an April 2019 statement from his wife. The treatment note shows that the Veteran complained of frequent urination during the night (6-7 times) and mixed urinary incontinence requiring wearing of absorbent materials which must be changed 5-6 times daily. 04/22/2019, Medical Treatment Record- Government Facility. Meanwhile, the statement from the Veteran’s wife indicates that the urine leakage is one of the main issues affecting the Veteran. She stated that the Veteran required wearing absorbent materials which must be changed five or more times per day. 04/22/2019, Buddy/Lay Statement. Based on the evidence above, the Board finds that the Veteran meets the criteria for a rating of 60 percent, based on his voiding dysfunction. The evidence received in April 2019 provides the basis for the currently assigned rating of 60 percent. This rating is currently in effect since December 13, 2018. The Board finds that the currently assigned rating of 60 percent is warranted during the entire appeal period. While the evidence prior to December 2018 does not explicitly indicate that the Veteran required wearing absorbent materials which must be changed five or more times per day, the Board, resolving doubt in favor of the Veteran, finds that such level of disability is implicitly shown in the evidence of record. In this regard, the Board notes that, in a July 2010 DRO hearing, the Veteran’s spouse indicated that the Veteran used absorbent material less often than necessary. Then, at the March 2013 Board hearing, the Veteran testified that he needed to change the absorbent material about three times per day. His spouse, however, added that the Veteran required use of pad on the bed during the night, with continual leakage. These statements from the Veteran’s wife suggest that the severity of the Veteran’s voiding dysfunction has been underestimated throughout the appeal period. Additionally, the evidence generally shows that the severity of the Veteran’s other cancer residuals has remained stable during the appeal period. As such, it is reasonable to assume that the voiding symptoms reported in December 2019 have existed all along the appeal period. For these reasons, a higher rating of 60 percent, based on voiding dysfunction, is granted for the entire appeal period. As noted above, DC 7528 provides a maximum rating of 60 percent for residuals of prostate cancer. Therefore, a rating higher than 60 percent is not available as a matter of law. Furthermore, the Board finds that the severity of the Veteran’s disability more closely approximates the criteria for the currently assigned rating of 60 percent. As such, the Veteran’s disability symptomatology is adequately compensated under VA’s schedule. Finally, the Board notes that the July 2018 JMPR indicated that the Veteran should be afforded a new Board hearing regarding the prostate rating issue. In its July 2019 remand, the Board indicated that it would defer consideration of the Veteran’s request for a new hearing. Now that the appeal has returned to the Board and the Board has granted the maximum rating available under the applicable diagnostic code, the Board finds that a new hearing would be redundant. In reaching this conclusion, the Board notes that a new Board hearing would have allowed the Veteran to submit testimony regarding the severity of his voiding dysfunction. As noted above, in April 2019, the Veteran submitted medical and lay evidence that clearly describes the severity of his voiding dysfunction. This evidence is the basis for the currently assigned rating of 60 percent, which, as explained above, is the maximum rating under DC 7528. Additionally, a September 2020 supplement statement of the case readjudicated these matters and provided the Veteran opportunity to response. Furthermore, a November 2020 letter from the Board indicated that the Veteran had time to submit additional evidence and/or argument. For these reasons, the Board finds that the request for a new hearing is now moot. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.