Citation Nr: 21014725 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-26 671 DATE: March 15, 2021 ORDER Over the entire appeal period, a rating of 40 percent, but no higher, for prostate cancer, status post radical prostatectomy, is granted. FINDING OF FACT Over the entire appeal period, the Veteran’s prostate cancer, status post radical prostatectomy, has been manifested by a voiding dysfunction requiring the wearing of absorbent material which must be changed two to four times per day; but there is no evidence of signs or symptoms of renal dysfunction, or urinary incontinence requiring the use of an appliance, or wearing of absorbent materials which must be changed more than four times per day. CONCLUSION OF LAW Over the entire appeal period, the criteria for an evaluation of 40 percent, but no higher, for service-connected prostate cancer, status post radical prostatectomy, have been met. 38 U.S.C. §§ 1155 , 5107(b); 38 C.F.R. §§ 4.7 , 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1963 to August 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal of December 2017, July 2019, and October 2020 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2020, the Board remanded the claim for additional development. Entitlement to a rating in excess of 20 percent for prostate cancer status post radical prostatectomy, Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Prostate cancer is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and shall continue with a mandatory VA examination at the expiration of six months. If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. For renal dysfunction, a 30 percent rating is provided for constant or recurring albumin with hyaline and granular casts or red blood cells, or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is provided for constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is provided for persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis or precluding more than sedentary activity from persistent edema and/or albuminuria, BUN more than 80mg%, or creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Voiding dysfunction is rated based on urine leakage, urinary frequency, or obstructed voiding. For urine leakage, a 20 percent rating is provided for voiding dysfunction that requires the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials, which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id. For a rating based on urinary frequency, a 10 percent rating requires a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent evaluation for urinary frequency is warranted where there is a daytime voiding interval between one and two hours, or if the disability results in awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. Id. For a rating based on obstructed voiding, a 10 percent rating requires 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 flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. In August 2020, as directed in the Board’s prior remand, the RO contacted the Veteran and requested he provide authorization for VA to attempt to obtain private medical records relevant to this claim. The Veteran did not respond to this request. While the Veteran previously submitted August 2019 records from Dr. K. P., his private physician, no other private treatment records are included in the claims file. However, there has been substantial compliance with the Board’s directives and VA has met its duty to assist the Veteran in obtaining private medical records. See Stegall v. West, 11 Vet. App. 268 (1998); see also 38 U.S.C. § 5103A. In September 2017, the Veteran filed a claim seeking an increased rating for residuals of prostate cancer. This condition is now rated as 20 percent disabling over the entire period on appeal. In September 2017, the Veteran submitted a statement asserting he used adult diapers and woke to use the bathroom three or more times each night because of the residuals of his prostate cancer. In February 2018, he submitted an additional statement describing continued problems with urine leakage. In April 2019, a VA prostate cancer examination was provided. The examiner found the Veteran’s cancer was in remission following a 1998 surgery. The examiner found the Veteran had a voiding dysfunction, but this did not require the wearing of absorbent materials. The examiner noted in a different section of his report that the Veteran used two pads daily for urinary leakage. The Veteran awoke to void twice each night. He did not use an appliance, or have symptoms of obstructed voiding, or a history of recurrent urinary tract or kidney infections. There was no renal dysfunction. In June 2019, the examiner declined to make changes to his report that the Veteran’s urinary leakage did not required wearing absorbent materials because the Veteran’s prostate surgery was performed 21 years earlier and post-surgical notes from 2005 and 2009 did not indicate urinary difficulties or incontinence. The Veteran submitted August 2019 records from Dr. K. P.,., his private physician. Dr. K. P. noted the Veteran’s history of prostate cancer surgery. He described the Veteran as currently wearing absorbent pads while doing physical activity. In one portion of these notes, Dr. K. P. indicated the Veteran changed absorbent pads one or two times each day. In a different portion of the notes, he indicated the Veteran changed pads two or three times each day. The doctor also noted a renal mass, described a stable and unchanged, had been observed in a May 2015 CT scan and in a September 2018 ultrasound evaluation. No renal symptoms or dysfunction were indicated. In October 2020, a second VA prostate cancer examination was provided. The Veteran reported that he had occasional urinary leakage and used two pads each day, “just in case.” The Veteran’s daytime voiding interval was between two and three hours and he woke up twice per night to void. He did not use an appliance, or have symptoms of obstructed voiding, or a history of recurrent urinary tract or kidney infections. No renal dysfunction was indicated. The examiner noted the Veteran was followed by private doctors. Here, the April 2019 and October 2020 VA examiners described the Veteran’s use of two absorbent pads each day (indicating one change of padding each day). Private treatment records from August 2019 document the Veteran changed absorbent pads up to three times each day. The Board notes, the April 2019 examiner appeared base his evaluation, in part, on medical reports from many years prior to the appeal period. Resolving reasonable doubt in favor of the Veteran, a 40 percent rating, but no higher, based on voiding dysfunction is warranted over the entire appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Furthermore, the Board finds the preponderance of the evidence is against finding the Veteran’s residuals of prostate cancer have presented as renal dysfunction or urinary incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Therefore, his condition has not met the criteria for a rating in excess of 40 percent at any time during the period on appeal. Id. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.