Citation Nr: 21014410 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-40 212 DATE: March 12, 2021 ORDER The reduction of the evaluation from 100 percent for service-connected prostate cancer to 60 percent rating, effective July 1, 2016, was proper. Entitlement to initial rating in excess of 60 percent for service-connected prostate cancer is denied. Entitlement to an initial compensable rating for service-connected erectile dysfunction is denied. FINDINGS OF FACT 1. The 100 percent rating assigned for prostate cancer was in effect for less than five years, and at the time of the reduction the evidence established improvement in prostate cancer under ordinary conditions of life. 2. From July 1, 2016, the residuals of prostate cancer are shown to have been manifested by voiding dysfunction requiring wearing absorbent materials that must be changed more than four times per day. 3. The Veteran’s service-connected erectile dysfunction is productive of loss of erectile power, but not deformity of the penis. CONCLUSIONS OF LAW 1. The July 2016 reduction of the 100 percent rating for service-connected prostate cancer to a 60 percent rating was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b Diagnostic Code 7528. 2. From July 1, 2016, a rating in excess of 60 percent is not warranted for the Veteran’s residuals of prostate cancer. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.115b, Diagnostic Code 7527-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2015 (erectile dysfunction) and January 2016 (prostate cancer) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran and his wife testified at a hearing. The transcript of the hearing is of record. By way of background, in November 2019, the Board remanded the issues on appeal for further evidentiary development. That development having been completed, the issues on appeal are again before the Board. Reductions 1. The reduction of the evaluation from 100 percent for service-connected prostate cancer to 60 percent rating, effective July 1, 2016, was proper. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 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). In this case, the RO followed proper procedure in reducing the assigned rating for the Veteran’s service-connected prostate cancer. The Veteran underwent a VA examination in December 2015 and the subsequent January 2016 rating decision proposed to reduce the assigned rating from 100 percent to 20 percent rating. A January 2016 notification letter for the rating decision informed the Veteran that he had 60 days in which to submit evidence, and of his right to request a predetermination hearing. Thereafter, in an April 2016 rating decision, the RO stated that as the Veteran provided information from his primary care provider that the Veteran met the evaluation criteria for a 60 percent evaluation. The reduction was effectuated by the April 2016 rating decision, effective from July 1, 2016, which is consistent with the requirement that 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. The Board must now address whether the competent evidence warranted a reduction in the assigned rating. In considering the propriety of a reduction, the Board will consider the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). In this case, the provisions of 38 C.F.R. § 3.344(a) are not applicable, as the disability rating for the Veteran’s prostate cancer had been in effect for less than 5 years. Following a review of the evidence, the Board finds that the reduction in the rating for prostate cancer from 100 percent to 60 percent, effective July 1, 2016, was proper. For instance, Note 1 of Diagnostic Code 7528 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. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e). If there is no recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Here, in the December 2015 VA examination, the Veteran reported that he has stress incontinence and as such he wears protective undergarments (liner) that he changes two times per day and prior to bed. The Veteran’s prostate cancer was noted to be in remission. The Veteran endorsed having voiding dysfunction that causes urine leakage. The Veteran stated that his voiding dysfunction caused increased urinary frequency with daytime voiding interval between two and three hours. The Veteran did not have any residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. Additionally, no renal dysfunction was noted. In a February 2016 prostate cancer disability benefits questionnaire (DBQ), the examiner noted that the Veteran’s prostate cancer was in remission as there was no evidence of recurrence. The Veteran endorsed having stress urinary incontinence such that he is required to wear absorbent material that needs to be changed more than four times per day. The Veteran stated that his voiding dysfunction causes increased urinary frequency such that he has daytime voiding interval between two and three hours and nighttime awakening to void two times. The Veteran denied having a history of recurrent symptomatic urinary tract or kidney infections. In the July 2016 VA examination, the Veteran’s prostate cancer was noted to be in remission. The Veteran endorsed having voiding dysfunction that caused urine leakage such that he is required to wear absorbent material that need to be changed more than four times per day. The Veteran stated that due to his voiding dysfunction he has increased urinary frequency of daytime voiding interval between one and two hours, and nighttime awakening to void three to four times. The Veteran stated that he has had night sweats since his 2015 surgery. In the January 2020 VA examination, the Veteran endorsed having voiding dysfunction that caused urine leakage such that he is required to wear absorbent material that needs to be changed two to three times per day. The Veteran denied having a history of urinary tract infections, urinary retention, or renal dysfunction except for a one-time episode of kidney stone not related to prostate cancer. The examiner also opined that renal dysfunction, to include kidney stones, are less likely than not a result of the Veteran’s prostate cancer. The examiner explained that the serum creatinine levels from February 1989 to October 2019 were normal indicating no renal/kidney disease or renal dysfunction. The examiner noted that the Veteran had a one-time mild elevation of 1.47 in March 2017 when the Veteran was seen in the emergency room for pancreatitis. However, about 15 days later, the creatinine was resolved and has not been elevated since. The examiner explained that mild episodic elevations of creatinine can be seen in illness and dehydration. Further, a review of the medical records is silent for a chronic kidney condition or disease. The Veteran did have a one-time episode of a single kidney stone in April 2018 that resolved by May 2018. Even then, during this episode of kidney stone, there was no elevation of serum creatinine/renal dysfunction. A review of the treatment records shows that the Veteran’s renal function was essentially normal. Specifically, in the October 2015 VA treatment record the Veteran’s blood urea nitrogen (BUN) level was 10. See November 2015 CAPRI. In the April 2016 VA treatment record, the Veteran’s BUN level was 12 and in the June 2016 VA treatment record the Veteran’s BUN level was 15. See June 2015 CAPRI and July 2016 CAPRI. In the March and April 2019 VA treatment record, the Veteran’s BUN readings ranged from six to 18. See September 2019 CAPRI. The Board concludes that the RO’s reduction in rating for prostate cancer to 60 percent was proper, as the preponderance of the evidence at the time of the reduction demonstrated that the Veteran’s prostate cancer had improved, to include improvement in the ability to function under the ordinary conditions of life and work. As stated above, the Veteran continues to require at most wearing an absorbent material which must be changed more than four times per day. The Veteran’s kidney function is essentially normal with no elevated creatinine level except for a one-time reading. Moreover, the medical records also show that the Veteran did not have any renal dysfunction except for a one-time kidney stone unrelated to the Veteran’s prostate cancer. As such, the Board finds that the preponderance of the evidence supports the reduction in the evaluation assigned for the Veteran’s prostate cancer that is in remission. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 2. Entitlement to initial rating in excess of 60 percent for service-connected prostate cancer is denied. Prostate cancer is rated under Diagnostic Code 7528, which provides for rating residuals as voiding dysfunction and renal dysfunction. The Veteran’s prostate cancer has been rated as a voiding dysfunction as the Veteran does not exhibit any renal dysfunction as addressed below. For voiding dysfunction, a 20 percent rating is warranted when wearing of absorbent materials which must be changed less than 2 times per day is required. A 40 percent rating is warranted for when absorbent materials must be changed 2 to 4 times per day. A 60 percent rating (the maximum schedular rating as a voiding dysfunction) is warranted when use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is required. 38 C.F.R. §§ 4.115a, 4.115b. As an initial matter, the Veteran filed his claim for entitlement to service connection for prostate cancer in October 2014. In a November 2014 rating decision, the Veteran was granted service connection for his prostate cancer at a 100 percent rating effective October 20, 2014. Then, in a June 2015 rating decision, the Veteran was granted service connection for erectile dysfunction at a noncompensable rating. In a January 2016 rating decision, the RO proposed to decrease the Veteran’s rating from 100 percent to 20 percent for his service-connected prostate cancer. In April 2016, the RO effectuated the decrease from 100 percent rating to 60 percent rating for his service-connected prostate cancer, effective July 1, 2016. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran’s rating for residuals of prostate cancer is consistent with a 60 percent rating from July 1, 2016. A review of the post-service medical records shows that the Veteran was afforded VA examinations in December 2015, July 2016, and January 2020 with a prostate cancer DBQ in February 2016. In the December 2015 VA examination, the Veteran reported that he underwent a radical prostatectomy with bladder neck reconstruction in March 2015. The Veteran stated that he was on hormone ablative therapy and has had night sweats almost every night which waxed and waned. The Veteran reported that he has stress incontinence and as such he wears protective undergarments (liner) that he changes two times per day and prior to bed. The Veteran’s prostate cancer was noted to be in remission. The Veteran stated that his voiding dysfunction caused increased urinary frequency with daytime voiding interval between two and three hours. The Veteran was noted to have erectile dysfunction, but no renal dysfunction. In the February 2016 prostate cancer DBQ, the examiner noted that the Veteran’s prostate cancer was in remission as there was no evidence of recurrence. On examination, the Veteran endorsed having stress urinary incontinence that requires him to wear absorbent material in which he needs to change more than four times per day. The Veteran stated that his voiding dysfunction causes increased urinary frequency such that he has daytime voiding interval between two and three hours and nighttime awakening to void two times. The Veteran endorsed having erectile dysfunction. In the July 2016 VA examination, the Veteran’s prostate cancer was noted to be in remission. The Veteran endorsed having voiding dysfunction that caused urine leakage such that he is required to wear absorbent material that needs to be changed more than four times per day. The Veteran stated that due to his voiding dysfunction he has increased urinary frequency of daytime voiding interval between one and two hours, and nighttime awakening to void three to four times. The Veteran stated that he has had night sweats since his 2015 surgery. The Veteran was noted to have erectile dysfunction. In the August 2019 hearing, the Veteran attested that due to his erectile dysfunction he has to sit on the toilet as his penis “shrunk.” Additionally, the Veteran stated that he does not have a sex life due to his erectile dysfunction. As for residuals of prostate cancer, the Veteran testified that he changes absorbent pads two or three times per day. The Veteran also endorsed having night sweats and bladder spasms. The Veteran denied having weakness or weight loss as residuals of his prostate cancer, but were due to “something else.” In the January 2020 VA examination, the Veteran endorsed having increased urgency, slow stream, history of bladder spasm, and use of absorbent pads. The Veteran stated that he has leakage during the day such that he is required to use a pad that he changes two to three times per day. The Veteran’s voiding dysfunction causes increased urinary frequency such that the Veteran has daytime voiding interval between two and three hours and nighttime awakening to void two times. The Veteran reported having a one-time episode of kidney stones not related to prostate cancer. The Veteran also stated that he has chronic pancreatitis which resulted in weight loss that usually occurs about once a month lasting two to three days. In the past, his pancreatitis flare up lasted about 2 weeks in which he lost 28 pounds. The Veteran was noted to have erectile dysfunction and retrograde ejaculation, but no obvious physical deformity. Regarding the Veteran’s kidney, the evidence of record shows no evidence of renal dysfunction. The examiner noted that an April 2018 computerized tomography (CT) scan of the abdomen and pelvis revealed 2-3 mm stone into the distal right ureter with slight associated distention of the right ureter but without overt hydronephrosis. Despite the kidney stone, an April 2018 lab result showed normal BUN readings. In May 2018, there was no radiographic evidence of urolithiasis. In July 2018, there was no evidence of nephrolithiasis or hydronephrosis. The examiner also opined that renal dysfunction, to include kidney stones, is less likely than not a result of the Veteran’s prostate cancer. The examiner explained that the serum creatinine from February 1989 to October 2019 showed normal serum creatinine indicating no renal/kidney disease or renal dysfunction. The examiner noted that the Veteran had a one-time mild elevation of 1.47 in March 2017 when the Veteran was seen in the emergency room for pancreatitis. However, about 15 days later, the Veteran’s elevated creatinine reading was resolved and has not been elevated since. The examiner explained that mild episodic elevations of creatinine can be seen in illness and dehydration. Further, a review of the medical records is silent for a chronic kidney condition or disease. The Veteran did have a one-time episode of a single kidney stone in April 2018 that resolved by May 2018. Even then, during this episode of kidney stone, there was no elevation of serum creatinine/renal dysfunction. Moreover, the examiner noted that a review of medical literature does not support that prostate cancer is causative of renal dysfunction unless the prostate cancer is untreated and spreads to the kidney. Here, the Veteran underwent treatment for his prostate cancer and has had PSA less than 0.06 since May 2015 status post radical prostatectomy. The Veteran’s prostate cancer is in remission and there is no history of metastasis of his prostate cancer. The examiner also noted that the Veteran’s complaint of weakness and lethargy coupled with weight loss is less likely than not attributable to his post-status prostate cancer as the Veteran’s prostate cancer is in remission with no reoccurrence. Instead, the medical records indicate that the Veteran’s chronic pancreatitis is the cause of the Veteran’s weakness, lethargy and weight loss. In fact, even the Veteran reported that during a pancreatitis flareup he could lose weight up to 28 pounds. A review of the VA treatment records shows that the Veteran had predominantly normal BUN and creatinine level. Specifically, in the October 2015 VA treatment record the Veteran’s BUN level ranged between 10 to 17. See October 2015 CAPRI and November 2015 CAPRI. In the April 2016 VA treatment record, the Veteran’s BUN level was 12 and in the June 2016 VA treatment record it was 15. See June 2015 CAPRI and July 2016 CAPRI. In the April 2018 and September 2018 VA treatment record, the Veteran was noted to have normal renal functions. See September 2019 CAPRI. An April 2018 CT scan revealed 2-3 mm distal right ureteral stone. In May 2018 VA treatment record, the Veteran was not even aware that he had a kidney stone as the Veteran was asymptomatic and the right ureteral stone passed. See September 2019 CAPRI. Based on the foregoing, the Board finds that the Veteran’s residuals of his prostate cancer are consistent with a 60 percent rating as the Veteran requires the use of absorbent pads that needs to be changed more than four times per day. The Board has considered whether other diagnostic codes may warrant a higher rating for residuals of prostate cancer. A higher rating is available under the criteria for rating renal dysfunction. However, the Veteran’s residuals of his prostate cancer are not manifested by renal dysfunction. As the Veteran consistently described his symptoms as causing urinary incontinence requiring use of absorbent pads these symptoms are consistent with a 60 percent rating. Consequently, a rating in excess of 60 percent for the residuals of prostate cancer from July 1, 2016 is not warranted. 3. Entitlement to an initial compensable rating for service-connected erectile dysfunction is denied. The Veteran is currently in receipt of a noncompensable disability rating for erectile dysfunction under Diagnostic Code 7527-7522. 38 C.F.R. § 4.115b. Thus, in this case, the Veteran’s erectile dysfunction is rated under prostate gland injuries and penile deformity with loss of erectile power. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with loss of erectile power. Id. A footnote to Diagnostic Code 7522 indicates that the disability is to be reviewed for entitlement to special monthly compensation for loss of use of a creative organ under 38 C.F.R. § 3.350(a). In this case, the Veteran is in receipt of SMC for loss of use of a creative organ. Two requirements must be met before a 20 percent evaluation can be assigned: (1) the deformity must be evident; and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. As an initial matter, the Veteran filed his claim for entitlement to service connection for prostate cancer in October 2014. In a June 2018 rating decision, the RO granted service connection for erectile dysfunction at a noncompensable rating effective March 24, 2015, the date the Veteran underwent a prostatectomy. The RO stated that although the Veteran did not claim erectile dysfunction, this issue was inferred based upon the Veteran’s prostatectomy. Upon a review of the evidence, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Code 7522. In this case, the Veteran clearly has loss of erectile power. However, the evidence of record does not reveal any physical deformity of the Veteran’s penis. Specifically, in the November 2015 VA examination it was noted that the Veteran has a normal penis, testes, and epididymis. In the January 2020 VA examination, the examiner noted that the Veteran has a normal penis and testes. The Veteran did not have any obvious deformity. In fact, the Veteran’s surgery for prostate cancer was laparoscopic/robotic procedure with incision in the abdomen. As such, the scars from his surgery did not affect and/or cause scars or deformity on the penis. In this case, the requirement under Diagnostic Code 7522 of deformity of the penis ‘with’ loss of erectile power clearly means that both factors are required. The Veteran’s extensive VA and private treatment records do not document that the Veteran had any penile deformity. Furthermore, the Veteran has not asserted that he has any penile deformity except that his penis “shrunk” which is consistent with an erectile dysfunction. Accordingly, there is no lay or medical support for an initial compensable evaluation for the Veteran’s erectile dysfunction under Diagnostic Code 7522, and the increased evaluation claim is denied. Although the Veteran generally raised the issue of extraschedular consideration, “please take into consideration extra-schedular consideration as part of his appeal,” the medical opinions associated with the file consistently opined that the Veteran’s erectile dysfunction imposes no functional limitations on his ability to work. See August 2016 Third Party Correspondence. Specifically, the November 2015 and January 2020 examiners opined that the Veteran’s erectile dysfunction would have no impact on the Veteran’s ability to work. Further, the evidence of records does not show that his erectile dysfunction has resulted in marked interference with his earning capacity or employment beyond that interference contemplated by the assigned evaluation, or that it has necessitated frequent periods of hospitalization. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran would not cause any interference with his earning capacity or employment. As there is no interference with employment or frequent hospitalizations associated with erectile dysfunction, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an extraschedular rating. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.