Citation Nr: 21021205 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-65 117 DATE: April 12, 2021 ORDER From November 1, 2012, to December 21, 2014, a rating in excess of 10 percent for prostate cancer residuals is denied. From December 22, 2014, to October 4, 2020, a rating of 20 percent, but no higher, for prostate cancer residuals is granted, subject to the law and regulations governing the payment of monetary benefits. From October 5, 2020, a rating in excess of 20 percent for prostate cancer residuals is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for lower extremity neuropathy is remanded. FINDINGS OF FACT 1. From November 1, 2012, to December 21, 2014, the Veteran’s prostate cancer residuals were manifested by nighttime awakening to void two times; they were not manifested by urinary leakage requiring the wearing of absorbent materials, daytime voiding every one to two hours, nighttime awakening to void three to four times, or urinary retention requiring intermittent or continuous catheterization. 2. From December 22, 2014, to October 4, 2020, the Veteran’s prostate cancer residuals were manifested by daytime voiding every one to two hours and nighttime awakening to void three to four times; they were not manifested by leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, daytime voiding interval less than one hour or awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 3. Since October 5, 2020, the Veteran’s prostate cancer residuals were not manifested by leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, daytime voiding interval less than one hour or awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 4. During the entire appeal period, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I hearing in each ear. CONCLUSIONS OF LAW 1. From November 1, 2012, to December 21, 2014, the criteria for a rating in excess of 10 percent for the residuals of prostate cancer were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.115a, 4.115b Diagnostic Code 7528. 2. Since December 22, 2014, the criteria for a rating of 20 percent, but no higher, for prostate cancer residuals were met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.115a, 4.115b Diagnostic Code 7528. 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1966 to July 1968, including service in the Republic of Vietnam from December 1966 to December 1967. This matter is before the Board of Veterans’ Appeals (Board) following a Board Remand in January 2020. With regard to the issue of entitlement to service connection for left lower extremity neuropathy, in May 2011, the Veteran reported that he had neuropathy of the bilateral lower extremities due to chemotherapy for Non-Hodgkin’s lymphoma (NHL). Service connection was denied in a May 2013 rating decision for both right and left lower extremity neuropathy. Although the Veteran expressed disagreement with the denial of service connection for left lower extremity neuropathy, on his VA Form 9, Appeal to the Board of Veterans’ Appeals, the Veteran noted that he was appealing neuropathy of the right lower extremity. Because this issue is being remanded, and because the Agency of Original Jurisdiction (AOJ) will have an opportunity to review the evidence prior to it being returned to the Board, the issue will be recharacterized as entitlement to service connection for bilateral lower extremity neuropathy. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignments of disability ratings following awards of service connection for hearing loss and prostate cancer. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial rating for prostate cancer residuals prior to October 5, 2020 The Veteran contends that he is entitled to a higher rating for his prostate cancer residuals. On his Notice of Disagreement received by VA in December 2014, the Veteran indicated that he was seeking a 20 percent rating. In this case, the Veteran’s residuals of prostate cancer are currently assigned a 10 percent rating from November 1, 2012, to October 4, 2020, and a 20 percent since October 5, 2020, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. As noted above, the Veteran indicated in December 2014 that he was seeking a 20 percent rating for his prostate cancer residuals; however, the Veteran’s representative indicated in a December 2020 Appellate Brief that a rating higher than 20 percent for prostate cancer residuals was at issue. As the assignment of a 20 percent rating does not constitute a full grant of the benefits sought, the Veteran’s claim for higher ratings for prostate cancer residuals remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Diagnostic Code 7528, pertaining to malignant neoplasms of the genitourinary system, directs that if there has been no local recurrence or metastasis, then the cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. The Veteran’s residuals of prostate cancer have been rated under 38 C.F.R. § 4.115a for voiding dysfunction as the predominant disability. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or 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, which must be changed 2 to 4 times per day, a 40 percent rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent rating is warranted. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night warrants. A 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night. Id. Obstructed voiding with: obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable rating; 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 urinary tract infections secondary to obstruction. 4. Stricture disease requiring periodic dilatation every 2 to 3 months warrants a 10 percent rating; urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. VA treatment records include a September 2011 primary care note which indicates that the Veteran had slight urinary incontinence after prostate surgery that was getting better and that the Veteran’s urologist did not recommend anything except wearing a pad. The Veteran underwent VA examination in October 2012 at which time the examiner noted that the Veteran was diagnosed as having prostate cancer and underwent radical retropubic prostatectomy (RRP) in July 2011. The Veteran reported post void dribbling and nocturia, urgency, and frequency; he denied incontinence. The Veteran reported having nighttime awakening to void 2 times; he denied urine leakage, signs or symptoms of obstructed voiding, and history of urinary tract or kidney infection. VA treatment records in October 2012 and December 2013 indicate that the Veteran reported no urinary symptoms. On his Notice of Disagreement received by VA on December 22, 2014, the Veteran indicated that if he was not careful, when he sneezed, he took the chance of wetting his pants. He also noted gradual urinary blockage leading to necessity of self catheterization before surgical intervention. He further noted that the elasticity of his bladder was affected from delay in treatment. The Veteran indicated that he had daytime voiding every one to two hours and nighttime awakening to void three to four times. He also noted that if standing and active, voiding was adequate; but if lying for a period, flow was slow and weak. On his VA Form 9 received by VA in December 2017, the Veteran noted that prior to RRP, his prostate was so enlarged that he had to self-catheterize to prevent more damage to his bladder due to not being able to urinate and/or urinate completely. The Veteran noted that his bladder had been enlarged for several years prior to the RRP and became wrinkly from staying expanded losing elasticity. He reported awakening to void four times per night and daytime voiding at least one to one and one-half hours. VA treatment records in March 2016, March 2017, and April 2018, the Veteran reported occasional incontinence but no dysuria; and in August 2019, the Veteran denied dysuria and bladder problems. The Veteran underwent VA examination in October 2020 at which time the examiner noted that the Veteran’s bladder was stretched and that he had polyuria at night, trouble finishing urinating, and weak stream. The Veteran’s voiding dysfunction caused nighttime awakening to void 3 to 4 times as well as signs or symptoms of obstructed voiding including markedly slow stream, markedly weak stream, and decreased force of stream. The Veteran he denied urine leakage. The Board acknowledges that the Veteran is competent to report observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Layno v. Brown, 6 Vet. App. 465 (1994). Initially, the Board notes that there is no evidence of renal dysfunction or urinary tract or kidney infections. VA treatment records show albumin levels consistently in the normal range. As the Veteran reported in his Notice of Disagreement that he daytime voiding every one to two hours and nighttime awakening to void three to four times, the Board finds that a 20 percent rating is warranted from December 22, 2014. A 20 percent rating, however, is not warranted prior to December 22, 2014, as the Veteran reported only having nighttime awakening to void two times. There was also no evidence of urinary leakage requiring the wearing of absorbent materials or urinary retention requiring intermittent or continuous catheterization. Further, a rating higher than 20 percent is not warranted at any time during the appeal period for prostate cancer residuals. There is no evidence of leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, daytime voiding interval less than one hour or awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a higher rating for his hearing loss. On his Notice of Disagreement received by VA in December 2014, the Veteran indicated that he was seeking a 10 percent rating. The Board notes that at the time of the December 2014 Notice of Disagreement, service-connection had only been established for his left ear; not his right ear. In an October 2020 rating decision, service connection was established for the Veteran’s right ear hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Although a VA audiology examination dated November 2, 2012, is no longer in the record, the May 2013 rating decision documented that on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 0 30 LEFT 10 10 10 0 65 The average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz is 13 in the right ear and 21 in the left ear. Although there are no speech audiometry findings in the record, applying the results from both the November 2012 VA audiogram to Table VIA, the findings yield a numeric designation of Level I in both ears. Entering the resulting bilateral numeric designation of Level I for both ears to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In support of his claim, the Veteran submitted a private December 2013 audiogram which shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 65 70 LEFT 10 20 30 70 85 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz is 46.25 in the right ear and 52.5 in the left ear. On the authorized audiological evaluation in August 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 65 70 LEFT 10 25 30 75 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percentage in the left ear. The average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz is 46.25 in the right ear and 52.5 in the left ear. Applying the results from both the private audiogram and the VA audiogram to Table VI, the findings yield a numeric designation of Level I in both ears. Entering the resulting bilateral numeric designation of Level I for both ears to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his complaints at the August 2020 VA examination that he could not hear high frequency birds or conversation with multiple speakers. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for lower extremity neuropathy The Veteran contends that he has lower extremity neuropathy related to service-connected disability. VA treatment records indicate that the Veteran underwent consultation with a neurologist in October 2010. VA staff neurologist noted that needle EMG examination of the right middle lumbar paraspinal muscles was normal and that examination of the right lower lumbar paraspinal muscle showed 1+ fibrillation potentials and positive sharp waves. The neurologist’s impression was “Abnormal study. Findings are consistent with an acute L5-S1 radiculopathy affecting the right side as well as a superimposed primarily axonal sensorimotor neuropathy affecting the lower extremities bilaterally (possibly secondary to prior chemotherapy vs. hereditary).” The Veteran was seen by his primary care physician (PCP) in February 2011 at which time the physician noted that CNS showed no focal deficit except decreased sensation of right anterior leg area medial side. The Veteran underwent VA examination in October 2012 at which time he reported that he began experiencing numbness in his right upper and lower leg around 2010. He also reported pain radiating from his back. After physical examination which revealed decreased sensation in the right upper anterior thigh, right thigh/knee, right lower leg/ankle, and right foot/toes, he was diagnosed as having lumbar radiculopathy with right leg neuropathy. The examiner opined that the lower extremity neuropathy was NOT caused by NHL and chemotherapy but by radiculopathy from the back and noted that neuropathy happened before NHL was diagnosed. The Board, however, found that the October 2012 VA examiner failed to provide adequate supporting rationale for the conclusions reached, did not provide a well-reasoned medical explanation, and did not adequately address the Veteran’s lay statements and contentions regarding the onset and continuity of his symptoms. The Veteran underwent VA examination in September 2020 at which time he reported that onset occurred abruptly in 2009/2010 with difficulty walking due to back pain and right leg numbness. The examiner noted the October 2010 EMG studies and noted, “Doctor writes that can be due to prior chemotherapy.” After physical examination which revealed decreased sensation in the right foot/toes, no peripheral nerve condition and/or peripheral neuropathy was diagnosed. The examiner noted that all signs and symptoms noted on examination were due to right lower extremity radiculopathy secondary to a back condition and that there was no objective evidence to support a diagnosis for the claimed left lower extremity. The Board notes that the Veteran filed his claim for service connection for neuropathy of the lower extremities in May 2011. In October 2010, a VA neurologist indicated that the EMG findings were consistent with an acute L5-S1 radiculopathy affecting the right side as well as a superimposed primarily axonal sensorimotor neuropathy affecting the lower extremities bilaterally (possibly secondary to prior chemotherapy vs. hereditary).” This was only seven months prior to the Veteran filing his claim. In addition, in September 2011, the Veteran’s primary care physician noted that the Veteran had right leg numbness and L5-S1 radiculopathy and noted the EMG findings. Even assuming any diagnosis during the appeal period has resolved, service connection could be warranted for any diagnosis that existed during the appeal period or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). If the Veteran does not currently have axonal sensorimotor neuropathy affecting the lower extremities bilaterally, the examiner must address all previous diagnoses during the appeal period and explain whether the diagnosis was in error or has resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (because the Veteran had the diagnosis during the appeal period, the VA examiner needed to address that diagnosis and whether it was accurate or in error). Although the September 2020 noted the VA neurologist’s findings, he did not provide any discussion as to whether such axonal sensorimotor neuropathy resolved. Therefore, the Board finds the September 2020 VA examination report inadequate as it did not address the prior sensorimotor neuropathy diagnosis, and an addendum VA opinion should be obtained to resolve diagnosis during the appeal period and request that the examiner provide an etiological opinion. The matters are REMANDED for the following action: Obtain a VA opinion from the September 2020 VA examiner, if possible, or an appropriate substitute, to determine the etiology of any sensorimotor neuropathy. Following a review of the pertinent evidence including the October 2010 EMG’s finding of acute L5-S1 radiculopathy affecting the right side as well as a superimposed primarily axonal sensorimotor neuropathy affecting the lower extremities bilaterally (possibly secondary to prior chemotherapy vs. hereditary). (Continued on the next page)   The examiner must clarify whether the Veteran currently has primarily axonal sensorimotor neuropathy affecting the lower extremities bilaterally. If a current diagnosis is not established, the examiner must explain whether that diagnosis was in error or has resolved. For a current diagnosis or diagnosis during the appeal period of primarily axonal sensorimotor neuropathy affecting the lower extremities bilaterally that was not in error, the examiner is asked to provide an opinion as to whether it was caused by or aggravated by service-connected NHL, prostate cancer, Lutz-dysfunction, postoperative resection of small bowel, or treatment for such disabilities. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Olson, Patricia 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.