Citation Nr: 21015157 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-07 665 DATE: March 16, 2021 ORDER A rating in excess of 40 percent for prostate cancer residuals is denied. FINDING OF FACT Throughout the period on appeal the residual symptoms of the Veteran’s prostate cancer have been characterized as in remission, requiring the wearing of absorbent materials that must be changed 2 to 4 times per day, a daytime voiding interval between 2 and 3 hours, and awakening to void 5 or more times at night. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3,105, 3.156, 3.159, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes (DC) 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1968 to August 1976. In an April 2011 rating decision, the Veteran’s rating for service-connected prostate cancer was reduced from 100 percent to 20 percent, effective July 2011. Prior to the reduction taking effect a June 2011 rating decision continued the Veteran’s rating of 100 percent, based on newly acquired evidence. In a January 2012 rating decision, the agency of original jurisdiction (AOJ) found clear and unmistakable error (CUE) in the previous June 2011 rating decision to continue the Veteran’s 100 percent rating, and again proposed a reduction of the Veteran’s rating to 40 percent, and in turn sever the Veteran’s special monthly compensation (SMC) based on housebound status. A subsequent April 2013 rating decision effectuated the reduction of the Veteran’s prostate cancer from 100 percent to 40 percent, and reduced the Veteran’s SMC for housebound, effective July 1, 2013. Subsequently, in a May 2013 rating decision, a rating in excess of 40 percent for residuals of prostate cancer was denied. A September 2017 statement of the case regarding the reduced rating claim also denied a higher rating for the Veteran’s prostate cancer residuals. In a November 2018 Board decision, the issue of an increased rating for prostate cancer residuals was remanded as the evidence demonstrated that the Veteran’s residuals may have worsened and the Board found that the matter of an increased rating for prostate cancer residuals was inextricably intertwined with additional remanded matters, including the propriety of the reduction in the rating for prostate cancer from 100 percent to 40 percent, effective July 1, 2013, and entitlement to SMC based on housebound status. Lastly, in September 2020, the Veteran elected to opt into the AMA appeals process for the issues of the propriety of the reduction in the rating for prostate cancer from 100 percent to 40 percent and entitlement to SMC based on housebound status. Therefore, the only remaining matter before the Board in the legacy appeals system is the issue of a rating in excess of 40 percent for residuals of prostate cancer. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Prostate Cancer Here, the Veteran’s prostate cancer has been evaluated under 38 C.F.R. § 4.115b DC 7528 for malignant neoplasms of the genitourinary system. Under DC 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 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 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, DC 7528. In the case of prostate cancer residuals under 38 C.F.R. § 4.115a, a disability rating is assigned based on renal dysfunction and voiding dysfunction, and including urinary frequency, obstructed voided, and urinary tract infections. The applicable criteria for a rating under 38 C.F.R. § 4.115a are: • Daytime voiding interval less than 1 hour, or; awakening to void 5 or more times per night. (40 percent maximum under urinary frequency) • Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. (40 percent under voiding dysfunction) • Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. (60 percent maximum under voiding dysfunction) • Constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under diagnostic code 7101. (60 percent under renal dysfunction) • Persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. (80 percent under renal dysfunction) • Requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, estpecially cardiovascular. (100 percent under renal dysfunction). 38 C.F.R. § 4.115a. The Board has reviewed the evidence of record and finds that a rating in excess of 40 percent is not warranted for the Veteran’s prostate cancer residuals. First, in July 2011, the Veteran underwent an in-person VA examination with claims file review regarding prostate cancer. The examiner documented that the Veteran’s prostate cancer was diagnosed in 2007 and was treated with a combination of radiation therapy and hormone therapy. The examiner also documented that there was no evidence of active prostate cancer. The Veteran reported that his voiding dysfunction did not require any changing of absorbent materials. He also reported voiding 10 to 12 times during the day and voiding 3 to 4 times at night. The also examiner noted that the Veteran has renal insufficiency as he has a kidney that does not function well. Subsequently, in a December 2011 VA examination addendum opinion, an examiner determined that the Veteran’s renal insufficiency is not caused by prostate cancer. Next, in August 2015, the Veteran underwent a second in-person VA examination with claims file review regarding prostate cancer to assess the status of his disability. The examiner documented that the Veteran’s prostate cancer was diagnosed in 2007, was successfully treated with radiation therapy and hormone therapy, and is currently in remission. The Veteran reported that his voiding dysfunction did not require any changing of absorbent materials. The Veteran also reported a daytime voiding interval between 1 and 2 hours and nighttime awakening to void more than 5 times per night. The examiner found that the Veteran had no symptoms of obstructed voiding, urinary tract infections, or kidney infections. Further, in September 2019, the Veteran underwent a third in-person VA examination with claims file review regarding prostate cancer to assess the status of his disability. The examiner documented that the Veteran’s prostate cancer is in remission, that his prostate-specific antigen (PSA) continues to be monitored annually, and that he continues to have residual symptoms of urinary incontinence and urinary frequency. The Veteran reported that his current symptoms also include a urinary burning sensation. The Veteran reported changing absorbent materials 2 to 4 per day, a daytime voiding interval between 2 and 3 hours, and nighttime awakening to void more than 5 times per night. The examiner found that the Veteran had no symptoms of obstructed voiding, urinary tract infections, or kidney infections. The Board notes that the Veteran’s medical treatment records indicate complaints of ongoing residuals of prostate cancer; however, the records do not contain the findings necessary to properly assign a disability rating. Therefore, the Board finds these medical treatment records to be of little probative value. The Board finds the results of the July 2011, August 2015, and September 2019 VA examinations to be highly probative in reaching its conclusion that a rating in excess of 40 percent is not warranted. Specifically, the evidence shows that the Veteran meets the maximum 40 percent rating criteria under urinary frequency as throughout the period on appeal he reported nighttime awakening to void more than 5 times per night. Further, the Veteran meets the 40 percent rating criteria under voiding dysfunction as throughout the period on appeal he reported changing absorbent material 2 to 4 per day. The evidence does not show that the Veteran meets the 60 percent rating criteria under voiding dysfunction as he does not require the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. Additionally, the Veteran does not qualify for ratings under urinary tract infections or obstructed voiding as throughout the period on appeal the VA examiners specifically found no evidence of either. Moreover, the December 2011 VA examination addendum opinion determined that the Veteran’s symptoms of renal dysfunction are not related to his prostate cancer, and a rating under renal dysfunction is therefore not warranted. Lastly, all of the VA examiners found that there is no evidence of active prostate cancer and that the Veteran is in remission from prostate cancer. Thus, the Board finds that although the Veteran was properly assigned a 100 percent disability rating when he had active prostate cancer, now that he is in remission and his symptoms are adequately contemplated by the 40 percent rating criteria, a rating in excess of 40 percent is not warranted. Accordingly, the Board finds that a preponderance of the evidence demonstrates that the Veteran’s prostate cancer residuals are adequately contemplated by the 40 percent rating criteria, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, a rating in excess of 40 percent for prostate cancer residuals is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.