Citation Nr: 21022826 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-27 983A DATE: April 19, 2021 ORDER Prior to August 6, 2014, the criteria for an initial compensable rating for prostate cancer residuals is denied. From August 6, 2014, forward, an initial 40 percent rating for prostate cancer residuals is granted. FINDINGS OF FACT 1. From July 23, 2010, to August 5, 2014, the Veteran’s prostate cancer, status post-seed implantation, in remission, did not result in renal dysfunction or voiding dysfunction. 2. From August 6, 2014, forward, the Veteran’s prostate cancer, status post-seed implantation, in remission, results in continual urine leakage requiring absorbent materials that must be changed 2 to 4 times per day; the use of an appliance is not required and the wearing absorbent materials that must be changed more than 4 times per day is not shown. CONCLUSIONS OF LAW 1. Prior to August 6, 2014, the criteria for an initial compensable rating due to prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.10, 4.115a, Diagnostic Code (DC) 7528. 2. From August 6, 2014, forward, the criteria for a 40 percent rating, but not higher, due to prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.10, 4.115a, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran completed an honorable career in the U.S. Air Force, serving on active duty from December 1967 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision that awarded service connection for prostate cancer residuals and assigned an initial, noncompensable disability rating, effective July 23, 2010. The Board remanded the matter for further development in June 2018 and July 2020. The Veteran testified at a hearing before the undersigned in March 2018, and a transcript of the hearing is of record. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Prior to August 6, 2014, the criteria for an initial compensable rating for prostate cancer residuals is denied. 2. From August 6, 2014, forward, an initial 40 percent rating for prostate cancer residuals is granted. Service connection for prostate cancer was granted by a rating decision dated in December 2010. The disability was assigned a noncompensable rating, effective July 23, 2010, under DC 7528. 38 C.F.R. § 4.115b. DC 7528 provides that when a Veteran’s cancer goes into remission, the Veteran is to be rated based on the residuals of the cancer. The Note under DC 7528 states that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, any change in evaluation based on examination shall be subject to the provisions of 38 U.S.C. § 3.105(3) of the chapter. If there has been no local recurrence or metastasis, rate on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. Here, the Veteran has not been shown to have renal dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115(a). Only the predominant area of dysfunction is considered for rating purposes. Id. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence is assigned a 20 percent rating when it requires the wearing of absorbent materials which much be changed less than two times per day. A 40 percent rating is warranted when it requires the wearing of absorbent materials which must be changed two to four times per day. A maximum 60 percent rating is warranted when it requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Urinary frequency is assigned a 10 percent rating when daytime voiding interval is between two and three hours or awakening to void two times per night. A 20 percent rating is warranted when the daytime voiding interval is between one and two hours or awakening to void three to four times per night. A maximum 40 percent rating is warranted when the daytime voiding interval is less than one hour or awakening to void five or more times per night. Obstructed voiding is assigned a zero percent (noncompensable) rating when there is obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating is warranted when there is 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 two to three months. A maximum 30 percent rating is warranted when there is urinary retention requiring intermittent or continuous catheterization. A VA treatment record dated in February 2009 showed that the Veteran underwent prostate brachytherapy in October 2007 and had been previously on a combination of Avodart and Flomax and had discontinued the Flomax and was on Avodart as monotherapy. In December 2008, he had discontinued this on his own and he had really noted no significant difference. He was quite pleased. It seemed like his voiding symptoms had resolved and he was having no erectile issues. Post-void residuals were 28 cc. The Veteran was afforded a VA examination in September 2010. The examination report states the Veteran was diagnosed with prostate cancer in July 2007. A history of obstructed voiding (urinary retention) was documented. General systemic symptoms due to genitourinary disease were not found. Urinary symptoms, urinary leakage, UTI infections, urinary track stones, renal dysfunction, renal failure, acute nephritis, hydronephrosis, and erectile dysfunction were not found. Catherization and dilations were not required. The examiner notes that radioactive seed implantation resulted in local swelling requiring temporary catheterizations. Regarding catheterizations, at his March 2018 Board hearing, the Veteran testified having to use a catheter up to 12 times a day for three months after having his initial prostate treatment with seed implants. VA treatment records show that the Veteran had microhematuria in September 2010. A CT of the bladder was normal. The assessment was probable minute bilateral renal calculus. The Veteran denied any problems with urination and denied hematuria in December 2010. On his January 2011 Notice of Disagreement, the Veteran reports the VA examiner incorrectly stated he no longer had voiding issues. He also reports his voiding issues impact his day-to-day activities. On his VA Form 9 dated August 6, 2014, the Veteran reports he is unable to empty his bladder and during the day, he must void every 30 minutes to one hour. He reports leaking issues, and he must change his absorbent material three times a day. He states that he believes his condition should be rated at 40 percent under DC 7528. He also believes his residuals of prostate cancer treatment include erectile dysfunction and warrant special monthly compensation due to loss of use of a creative organ. On August 12, 2014, the Veteran sought treatment at VA, wherein it was noted that he was last seen four years ago. He stated that after seed implants in 2007, he did not follow up with his private urologist. His complaints included incontinence of urination, not feeling like he empties his bladder completely, and still having urinary urgency. With respect to erectile dysfunction, he denied having any treatment. A post-void residual bladder scan in August 2014 showed 103 milliliters. On urology evaluation in January 2015, the Veteran reported multiple complaints of not emptying his bladder, dribbling and urge incontinence. The examiner noted that his post-void residual was 103 cc. On urology evaluations in March 2015 and October 2015, the Veteran reported that following his 2007 surgery, he had postoperative retention, urgency and incontinence. It was noted that he was recommended to reduce coffee and prescribed Doxazosin 2 mg., and was much better. The examiner noted that the Veteran had postoperative retention, but was ok now. In February 2016, the Veteran reported three days of urgency, burning, and frequency. He denied any odor, blood, or discoloration. He stated that he was urinating every 15 minutes in small amounts. He further reported that at night the symptoms seem much less. He got up one to two times to urinate at night. He was diagnosed as having an early urinary tract infection (UTI) vs. prostatitis and prescribed Bactrim. Subsequent problem lists noted a history of a lower urinary tract infection. On urology evaluation in October 2016, the Veteran reported that his voiding was normal with Doxyzosin 2 mg. VA treatment records show that on examination in March 2018, the Veteran denied hematuria, dysuria, and nocturia. He stated that his urine flow is ok. At his March 2018 Board hearing, the Veteran reported voiding and erectile dysfunction and that he uses pads. He reported that his voiding dysfunction began after his prostate cancer surgery when he had the seed implants. He also reported that he uses absorbent materials (paper towels) that he changes six or more times a day. He had not sought treatment with a private provider for his voiding dysfunction. He reported leaking but not frequent urination. He also reported that he believes he has retention problems because when he had a voiding test conducted, urine was found in the bladder on ultrasound. He further reported his condition had worsened since 2009. A VA treatment record dated in June 2018 showed that the Veteran had recent gross hematuria and his CT scan showed a large bladder tumor arising from the left trigone. His voiding was normal with Doxyzosin. A Prostate Disability Benefits Questionnaire (DBQ) is of record from February 2019. The Veteran’s prostate cancer was noted to be in remission. A voiding dysfunction was noted. Regarding the etiology of the Veteran’s voiding dysfunction, the examiner found it was most likely due to benign prostatic hyperplasia, which they noted was a normal and expected outcome for the aging process. They stated that per non-VA medical records from February 2009, the Veteran’s symptoms of his urinary retention with lower urinary tract symptoms occurred at approximately the same time as his treatment for prostate cancer but resolved over time. The Veteran’s current symptoms with regard to insufficient bladder emptying, post void dribbling, and urge incontinence had their onset approximately seven years after treatment and are not related to either prostate cancer or its treatment. The examiner also noted that some of the Veteran’s symptoms may be related to his brachytherapy. No evidence of urinary retention was found. A voiding dysfunction was noted but did not require the use of absorbent material. The use of an appliance was not required. The voiding dysfunction did not cause an increase in urinary frequency. Obstructed voiding was not found. Obstructed symptoms were not found. Infections were not found. No erectile dysfunction was found. The Veteran was found not to have a retrograde ejaculation. No residual conditions or complications due to the Veteran’s prostate cancer or treatment were found. No renal dysfunction was found. A December 2019 DBQ is of record. The examination report notes the Veteran’s prostate cancer is in remission. The examiner found that the Veteran had a voiding dysfunction, and they noted that the etiology of the Veteran’s voiding dysfunction was his benign prostatic hyperplasia, which is a normal and expected outcome of the aging process. For their rationale, the examiner states that VA medical records from February 2009 noted that symptoms of urinary retention with lower urinary tract symptoms at approximately the same time as his treatment for prostate cancer, but resolved over time. The examiner found the Veteran’s symptoms with regard to insufficient bladder emptying, post-void dribbling, and urge incontinence had their onset approximately seven years after treatment and are not related to either prostate cancer or its treatment. The examiner also stated that 103 cc. post-void residual was consistent with bladder outlet obstruction (BOO) and that BOO is most commonly due to benign prostatic hyperplasia, The Veteran’s voiding dysfunction was found to cause urine leakage and required absorbent material, which must be changed two to four times per day. The Veteran’s voiding dysfunction was found not to require the use of an appliance. His voiding dysfunction increased urinary frequency to daytime voiding intervals between one and two hours and having to awaken twice at nighttime to void. A slow stream was noted but was found not to be markedly slow. A weak stream was also noted but was found not to be markedly weak. No other obstructive symptoms were found. Urinary tract or kidney infections were not found. An erectile dysfunction was noted, and the etiology was found to be reduced testosterone production, which was noted to be a normal and expected outcome of the aging process. A retrograde ejaculation was not found. No other residual conditions or complications to include renal dysfunction were found. The Veteran’s prostate cancer was found not impact his ability to work. A Prostate Cancer DBQ was completed in October 2020. The Veteran’s symptoms were noted to be urinary frequency and leakage. The Veteran also reported complaints of an erectile dysfunction. Voiding dysfunction was noted, and the etiology of the Veteran’s voiding dysfunction was found to be his prostate cancer treatment. The voiding dysfunction was found to cause urine leakage that requires absorbent material (paper towels) to be changed two to four times a day. A use of an appliance was not required. The Veteran’s voiding dysfunction was found to cause an increase in urinary frequency with daytime voiding intervals between one and two hours and nighttime awakening to void three or four times. The voiding dysfunction was found to result in signs or symptoms of obstructed voiding, which were noted to include a slow stream but not markedly slow and a weak stream but not markedly weak. A history of infections was not found. The Veteran’s erectile dysfunction was found to be caused by his hypertension or unrelated to his prostate cancer or prostate cancer treatment. An additional residual condition due to prostate treatment was noted to be urinary dysfunction. Regarding the Veteran’s voiding dysfunction, the evidence of record regarding its etiology is mixed. The February 2019 VA examiner states the etiology of the Veteran’s voiding dysfunction to most likely be due to benign prostatic hyperplasia, which they note was a normal and expected outcome for the aging process. In December 2019, the same examiner found that the Veteran had a voiding dysfunction, and they note the etiology of the Veteran’s voiding dysfunction was his benign prostatic hyperplasia, which is a normal and expected outcome of the aging process. In October 2020, a different VA examiner found the etiology of the Veteran’s voiding dysfunction to be his prostate cancer treatment. Given the conflicting evidence that is in equipoise, the Board will resolve reasonable doubt in the Veteran’s favor and find that the etiology of his voiding dysfunction to be his prostate cancer treatment. From July 23, 2010, to August 5, 2014, a compensable rating for the Veteran’s service-connected disability is not warranted because the Veteran’s prostate cancer, status post-seed implantation, in remission, was not manifested by urine leakage/ incontinence that required the wearing of absorbent materials which had to be changed less than two times per day; urinary frequency with daytime voiding interval between two and three hours or awakening to void two times per night; or obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with post void residuals greater than 150 cc, markedly diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction, or stricture disease requiring periodic dilatation every two to three months. To the contrary, as noted above, on VA examination in September 2010 general systemic symptoms due to genitourinary disease were not found. The Veteran was not shown to have urinary symptoms, urinary leakage, UTIs, or obstructed voiding. In his January 2011 Notice of Disagreement, the Veteran asserted that the September 2010 VA examiner incorrectly stated he no longer had voiding issues. He stated that his voiding issues impact his day-to-day activities; however, he did not describe any specific symptoms such as urine leakage, urine frequency, or obstructed voiding. Therefore, the preponderance of the evidence weighs against entitlement to a compensable rating for prostate cancer residuals prior to August 6, 2014. Considering and weighing the evidence of record, from August 6, 2014, forward, (the date of the Veteran’s VA Form 9) the Board finds that the Veteran’s prostate cancer residuals are manifested by continual urine leakage that requires absorbent materials that must be changed two to four times a day, which warrants a 40 percent evaluation. However, a rating in excess of 40 percent is not warranted for the Veteran’s symptoms of urine leakage, as the use of an appliance is not required and the evidence does not support a finding that his absorbent materials must be changed more than four times a day. His statement during his hearing in March 2018 that he has to change absorbent materials six or more times a day is an outlier vis-à-vis his statement on August 6, 2014, that he must change his absorbent material three times a day and the December 2019 and October 2020 VA examination reports wherein he reported having to change absorbent materials two to four times a day. The Board also notes that the Veteran has reported using paper towels as absorbent materials rather than absorbent materials specifically designed for the control of urinary leakage or incontinence. Regardless, resolving reasonable doubt in his favor, the Board finds that his symptoms approximate the criteria for a 40 percent rating. See 38 C.F.R. § 4.7. The Veteran also claims that his prostate cancer residuals include erectile dysfunction. However, in October 2020 a VA examiner found it is less likely than not the Veteran’s erectile dysfunction was due to his prostate cancer residuals, including the radioactive seed implantation. The examiner explained that the Veteran has diabetes and hypertension, which are the leading causes of erectile dysfunction. The examiner also explained that the Veteran has hypertensive vascular disease caused by hypertension, which causes vascular damage resulting in erectile dysfunction. The Board finds the VA examiner’s assessment of the etiology of the Veteran’s erectile dysfunction more probative than his lay assertions given that the examiner is a medical professional and provided objective findings and rationale for their opinion. Accordingly, Board finds from August 6, 2014, forward, a 40 percent rating for prostate cancer residuals under DC 7528 is warranted. Prior to August 6, 2014, the medical and lay evidence does not show symptomatology warranting a compensable rating. Finally, in February 2021 the Veteran’s representative asserted that this matter warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The determination involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe the disability level and symptomatology. If so, the analysis stops at that point; referral for extraschedular consideration is not required. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a further determination must be made as to whether there is an exceptional disability picture that includes other related factors, such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization is found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. (Continued on the next page) The Board finds that the first prong of the Thun analysis is not satisfied. The Veteran's prostate cancer residuals include symptoms of voiding dysfunction, i.e., urine leakage and urinary frequency, which are fully contemplated by the regular schedular criteria. Those criteria provide for higher ratings, but the criteria for such ratings are not met. Furthermore, there is nothing exceptional or unusual about the Veteran's prostate cancer residuals. See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020). Accordingly, referral for extraschedular consideration is not warranted. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.