Citation Nr: 21026213 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-65 862 DATE: April 30, 2021 ORDER 1. Entitlement to an increased 20 percent disability rating for bladder cancer residuals from October 18, 2017 and prior to August 15, 2018 is granted. 2. Entitlement to an increased disability rating in excess of 40 percent for bladder cancer residuals from August 15, 2018 is denied. FINDINGS OF FACT 1. From October 18, 2017 and prior to August 15, 2018, the Veteran’s bladder cancer residuals were manifested by no worse than voiding dysfunction with urine leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day, urinary frequency with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night, and obstructed voiding without urinary retention requiring intermittent or continuous catheterization. 2. From August 15, 2018, the Veteran’s bladder cancer residuals were manifested by no worse than voiding dysfunction with urine leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day and urinary frequency with a daytime voiding interval between less than one hour, or; awakening to void five or more times per night. CONCLUSIONS OF LAW 1. The criteria for an increased 20 percent disability rating for bladder cancer residuals from October 18, 2017 and prior to August 15, 2018 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2020). 2. The criteria for an increased disability rating in excess of 40 percent for bladder cancer residuals from August 15, 2018 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1956 to March 1958 with service at Camp Lejeune, North Carolina, from September 1957 to March 1958. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2019 hearing and a transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board in October 2020 in order to obtain updated VA treatment records dated from October 17, 2018 to the present, and to afford the Veteran a VA examination to determine the current nature and severity of his service-connected bladder cancer, including residual voiding dysfunction. As the requested development has been completed, the matter is properly returned to the Board for adjudication. During the pendency of the appeal, a January 2021 rating decision granted an increased 40 percent disability rating for the Veteran’s bladder cancer residuals, effective August 15, 2018. As this is not a full grant of the benefit sought on appeal, and the Veteran did not indicate that he agreed with the increased rating, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Entitlement to an increased disability rating for bladder cancer residuals in excess of 10 percent from October 18, 2017 and in excess of 40 percent from August 15, 2018. The Veteran claims that his service-connected bladder cancer residuals are more severe than that which is contemplated by his currently assigned disability ratings of 10 percent from October 18, 2017 and 40 percent from August 15, 2018. Currently, the Veteran’s bladder cancer residuals are rated under DC 7528, regarding malignant neoplasms of the genitourinary system. Thereunder, if there has been no local reoccurrence or metastasis, the condition is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528. As there is no probative evidence of renal dysfunction, the Veteran’s bladder cancer residuals are rated pursuant to 38 U.S.C. § 4.115a, regarding voiding dysfunction, which is rated based upon urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Regarding urine leakage (including continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a minimum 20 percent disability rating is warranted for a condition that requires the wearing of absorbent materials which must be changed less than 2 times per day; a 40 percent disability rating is warranted for a condition that requires the wearing of absorbent materials which must be changed 2 to 4 times per day; and a maximum schedular 60 percent disability rating is warranted for a condition that requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Regarding urinary frequency, a minimum 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night; a 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night; and a maximum schedular 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. Regarding obstructed voiding, a minimum 10 percent disability rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force or stream) with any one, or a combination, of the following: 1. Post void residuals greater than 150 cc; 2. Uroflowmetry; markedly diminished peak flow rate (less than 10cc/sec); 3. Recurrent urinary tract infections secondary to obstruction; or 4. Stricture disease requiring periodic dilation every 2 to 3 months; and a maximum 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence weighs in favor of an increased 20 percent disability rating for bladder cancer residuals from October 18, 2017 and prior to August 15, 2018; however, the preponderance of the evidence weighs against an increased disability rating in excess of 40 percent for bladder cancer residuals from August 15, 2018. The reasons for this decision follow. I. From October 18, 2017 and prior to August 15, 2018 Turning to the evidence of record from October 18, 2017 and prior to August 15, 2018, VA treatment records from November 2017 document that the Veteran underwent a cystoscopy procedure. At that time, he opted to stop PSA screening and did not want to try new medications, but requested to use absorbent pads. The following day, he was prescribed incontinence liner guards and instructed to use one pad two times daily for protection. This prescription remained active from November 2017 throughout the staged rating period prior to August 15, 2018. Given the above, and resolving any reasonable doubt in favor of the Veteran, the Board finds that an increased 20 percent disability rating is warranted for the rating period from October 18, 2017 and prior to August 15, 2018, based upon the Veteran’s prescription for incontinence liner guards with specific instructions to use “one pad two times daily.” In other words, the Veteran was to use two pads per day, or to change the prescribed pad once. The Board finds that this is probative evidence of voiding dysfunction with urine leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. As such, the criteria for an increased 20 percent disability rating have been met for the rating period from October 18, 2017 and prior to August 15, 2018. However, the probative evidence does not document more severe voiding dysfunction or any renal dysfunction that would otherwise warrant an increased disability rating in excess of 20 percent during the staged rating period from October 18, 2017 and prior to August 15, 2018. For example, the preponderance of the evidence is against the wearing of absorbent materials which must be changed 2 to 4 times per day, daytime voiding interval between one and two hours, or awakening to void three to four times per night. The Veteran has not alleged obstructed voiding requiring continuous catheterization to warrant a 30 percent rating for this symptom. Therefore, an increased disability rating in excess of 20 percent is denied for this part of the appeal period. II. From August 15, 2018 Turning to the evidence of record from August 15, 2018, VA treatment records from August 15, 2018 document that the Veteran’s existing prescription for incontinence liner guards, with instructions to use “one pad two times daily” for protection, remained active from August 15, 2018 until November 2019, when the Veteran requested to cancel the prescription for absorbent “under guards” from the VA pharmacy because he was using absorbent underwear instead. In January 2019, the Veteran reported that he was doing well and that his urinary urgency and incontinence had resolved with the addition of Ditropan medication. He reported lower urinary tract symptoms of urinary frequency with a daytime voiding interval between one and two hours, nocturia two times per night, and rare urgency, but denied any symptoms of incontinence, hesitancy, straining, sense of incomplete emptying, intermittency, terminal dribbling, dysuria, or weak stream. In March 2019, he reported that his urinary urgency had improved. In July 2019, he noted that his urinary urgency was controlled and urge incontinence was rare. He noted that he was using one guard per day, but requested a trial of Depends instead. His reported lower urinary tract symptoms included urinary frequency with a daytime voiding interval greater than two hours, nocturia two times per night, occasional urgency, and rare incontinence, but he denied any symptoms of hesitancy, straining, sense of incomplete emptying, intermittency, terminal dribbling, dysuria, or weak stream. In September 2019, he reported that he was physically active and playing softball twice a week, with chronic urinary issues including urinary frequency, urgency, and incontinence that were somewhat controlled with medication. In November 2019, the Veteran requested to discontinue cystoscopy procedures and to follow-up with yearly urinalysis. He reported that he was happy on his current medication and did not report any specific urinary dysfunction. Upon follow up in October 2020, he reported that he was free of burning discomfort when voiding but reported a problem with frequency. Upon VA examination in January 2021, the Veteran reported current symptoms of urinary urgency and incontinence that required prescription medication, including Terazosin, Oxybutynin, and Finasteride. He stated that due to the condition, he has a fear of drinking water when he goes out and that he has to wear Depends. He reported voiding dysfunction with urinary urgency, urinary incontinence, and urine leakage that required absorbent material which must be changed 2 to 4 times per day, without the use of an appliance, increased urinary frequency including nighttime awakening to void 3 to 4 times, with no signs or symptoms of obstructed voiding or history of urethral or bladder calculi. Regarding a history of recurrent symptomatic bladder or urethral infections, the Veteran stated that he had a blockage and had to catheterize himself; however, the examiner noted that there was no related treatment for this. There was also no findings, signs, or symptoms attributable to bladder fistula, urethral fistula, neurogenic bladder, severely dysfunctional bladder, or renal dysfunction. The Veteran’s malignant neoplasm related to his bladder cancer was noted to be in remission given that he had completed surgery and treatment and was in watchful waiting status, with no residual conditions or complications other than those already documented. Finally, the VA examiner noted functional impact upon the ability to work in that the Veteran reported that it affected the ability to work long hours given the need to stop working to urinate. At the November 2019 Board hearing, the Veteran testified that he experienced urinary leakage that required him to wear absorbent materials. He noted that he had recently switched from absorbent pads to underwear, and stated that he changed his absorbent materials an average of once per day, with urinary leakage four or five times per day. Regarding urinary frequency, the Veteran testified that he had to get up to empty his bladder about five times per evening and that he had to use the restroom every hour at home, depending on how much he had to drink. Regarding obstructive voiding, he reported that he had to self-catheterize in the past to help clear out scar tissue following his bladder cancer surgery, but he denied any current catheterization, including during the relevant appeal period. Based on the above, the Board finds that an increased disability rating in excess of 40 percent for bladder cancer residuals from August 15, 2018 is not warranted. In order to warrant a disability rating in excess of 40 percent under the relevant rating criteria, the probative evidence would have to document voiding dysfunction with urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Notably, during the staged rating period from August 15, 2018, the Veteran’s bladder cancer residuals were manifested by no worse than voiding dysfunction with urine leakage requiring the wearing of absorbent materials which must be changed no more than 2 to 4 times per day. Such evidence is consistent with the currently assigned 40 percent disability rating from August 15, 2018. A higher rating is not available for urinary frequency, as the 40 percent rating is the maximum rating for that symptom. Given the above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 40 percent for bladder cancer residuals from August 15, 2018. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim for increase during this part of the appeal period is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.