Citation Nr: 21024495 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-03 468 DATE: April 22, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for service-connected prostate cancer is denied. FINDING OF FACT 1. The probative medical evidence of record shows no recurrence of cancer or metastasis, and the Veteran’s most recent VA examination in January 2019 showed that the Veteran’s cancer was in remission. 2. Throughout the period on appeal, the objective medical evidence demonstrates that the Veteran requires the wearing of absorbent materials which must be changed two to four times per day; manifested by urinary frequency of daytime voiding interval between one and two hours, and night-time voiding of three to four times at night, with obstructed voiding that is not characterized as marked. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 40 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1953 to August 1956 and February 1959 to January 1976. The Board notes that the Veteran was scheduled for a hearing before a Veterans Law Judge (VLJ) in May 2019. The Veteran did not show for that hearing. Accordingly, the Veteran's request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d). Increased Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. Entitlement to an increased rating for residuals of prostate cancer In this appeal, the Veteran submitted a claim for a total disability rating based on individual unemployability (TDIU) in September 2013, which the RO construed as an increased rating claim for his service-connected disabilities, and most specifically here, whether a rating in excess of 40 percent was warranted for residuals of prostate cancer. The Board notes that TDIU was eventually granted for the entire period on appeal. Moreover, while the RO proposed to reduce the Veteran’s 40 percent rating, this was reduction was never enacted. Therefore, the only issue before the Board is whether a rating in excess of 40 percent, as rated under 38 C.F.R. § 4.115b, DC 7528, is warranted. The rating criteria for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a. In this case, as the evidence suggests that voiding dysfunction is the predominant disability, and as there is no evidence of renal dysfunction, further discussion of the associated regulations is not necessary. In order to warrant a rating in excess of 40 percent for residuals of prostate cancer based on voiding dysfunction, the evidence must show urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent under DC 7528). Based on the evidence of record, a rating in excess of 40 percent is not warranted. Specifically, during the Veteran’s August 2012 VA examination, he denied any renal dysfunction and stated that daytime voiding interval was between two and three hours, and that he would awaken to void three to four times at night. Notably, his voiding dysfunction did not result in the use of absorbent material or an appliance. Next, at his more recent VA examination in March 2014, the Veteran again detailed his urinary frequency, which appeared improved from before. Namely, he stated that he could “go almost all day” without urinating when traveling, but still experienced nocturia approximately twice per night. However, as before, he did not use any absorbent padding to control leakage. Finally, at his most recent VA urological examination in December 2018, the examiner observed that the Veteran experienced no voiding dysfunction, to include the need for absorbent padding. In light of these facts, the Board finds that the 40 percent disability rating assigned is for application throughout the entire period on appeal, for the service-connected prostate cancer is appropriate, and rating higher than 40 percent is not warranted, The Board has considered the statements of the Veteran as to the extent of his current residuals of prostate cancer. He is certainly competent to report that his symptoms have worsened. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Therefore, a rating in excess of 40 percent is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel