Citation Nr: 21026596 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-06 714A DATE: May 3, 2021 ORDER The claim of entitlement to an increased disability rating for the Veteran's prostate cancer residuals in excess of 20 percent prior to February 10, 2015, is denied. The claim of entitlement to an increased disability rating for the Veteran's prostate cancer residuals of 40 percent, but no higher, from February 10, 2015, to December 27, 2019, is granted. The claim of entitlement to an increased disability rating for the Veteran's prostate cancer residuals in excess of 40 percent thereafter is denied. REMANDED The claim of entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran underwent surgery to treat prostate cancer in December 2011. 2. From January 2013 to February 10, 2015, the preponderance of the evidence of record reflects that he experienced prostate cancer residuals of voiding dysfunction that did not require the wearing of absorbent materials and urinary frequency voiding three to four times per night. The Veteran's prostate cancer residuals did not cause obstructed voiding that required intermittent or continuous catheterization, urine leakage that required the use of absorbent materials, daytime voiding less than once per hour, or nighttime awakening to void five or more times per night. 3. Resolving reasonable doubt in favor of the Veteran, from February 10, 2015, to December 27, 2019, residuals of his service-connected prostate cancer caused nighttime awakenings four to five times per night. 4. The preponderance of the evidence of record fails to establish that the Veteran required use of absorbent material changed more than four times per day, or renal dysfunction. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent from January 7, 2013, to February 10, 2015, for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for a rating of 40 percent, but no higher, from February 10, 2015, to December 27, 2019, for residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a rating in excess of 40 percent since December 27, 2019, for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from February 1969 to December 1971, to include service in the Republic of Vietnam. The instant matter is on appeal from a February 2013 rating decision. In April 2018, the Veteran testified before the undersigned in a hearing. A transcript of the proceedings has been associated with the record. The Board previously remanded these issues in September 2018 and July 2020 for additional evidentiary development. The Veteran passed away in December 2020, and his surviving spouse was substituted as the Appellant in the present matter. 1. The claim of entitlement to an increased initial disability rating for the Veteran's prostate cancer residuals, rated as 100 percent prior to January 7, 2013, 20 percent prior to December 27, 2019, and 40 percent thereafter The Appellant asserts that the Veteran was entitled to increased ratings for residuals of his service-connected prostate cancer prior to his passing. The Board notes that the Veteran did not dispute the initial rating of 100 percent in the wake of his prostate cancer surgery, but instead the subsequent reduced evaluations. Thus, the period since January 7, 2013, is presently on appeal. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 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 evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran's prostate cancer, status post brachytherapy, has been rated under 38 C.F.R. § 4.115 b, Diagnostic Code 7527 and 7528. Diagnostic Code 7527 addresses prostate gland injuries, infections, hypertrophy, and post-operative residuals, and such should be rated as voiding dysfunction or urinary tract infection, whichever is predominant. Diagnostic Code 7528 affords a 100 percent evaluation following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, the condition will be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Initially, the Veteran's prostate cancer residuals were rated under Diagnostic Code 7528 until December 2019, and Diagnostic Code 7527 thereafter. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating is warranted for urine leakage that requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. For a rating based on urinary frequency, a 10 percent rating is warranted where there is daytime voiding interval between 2 and 3 hours, or; awakening to void 2 times per night. A 20 percent rating is warranted where there is a daytime voiding interval between one and two hours, or if the disability results in awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. Id. For a rating based on obstructed voiding, a 10 percent rating is warranted for 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. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. A noncompensable rating is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. Urinary tract infection exhibiting poor renal function should be rated as renal dysfunction. For recurrent of symptomatic infection requiring drainage or frequent hospitalization more than two times per year, and/or requiring continuous intensive management, a 30 percent rating is warranted. A 10 percent rating is warranted for urinary tract infection with long-term drug therapy, 1 to 2 hospitalizations per year and/or requiring intermittent intensive management. The Veteran underwent surgery to treat his prostate cancer in December 2011 and received a 100 percent rating from claim date until January 7, 2013. Thereafter, there is no indication of recurrence or metastasis, and he was noted to be in remission. In January 2013, the Veteran underwent a VA examination to assess the residuals of his prostate cancer. The examination report noted that he was in remission following the brachytherapy treatment in December 2011. There was voiding dysfunction noted as excessive urinary frequency, but not urinary leakage. Daytime voiding interval was between 1 and 2 hours, and the Veteran awakened at night to void 3 to 4 times. There were signs of obstructed voiding, including hesitancy, slow or weak stream, decreased force of stream, and urgency. Voiding dysfunction did not require the use of an appliance or absorbent material. There was no history of recurrent urinary tract or kidney infections. In December 2014, VA treatment records reflect that the Veteran was asymptomatic following his prostate cancer treatment. There was no reported voiding discomfort. In February 2015, the Veteran reported awakening 4 to 5 times per night to urinate. There was no indication of burning, pain, urgency, or fevers. He stated that the increase was gradual over the previous year, but provided no additional information. In March 2015, the Veteran endorsed some "resistance" on urination. He experienced nocturia 4 to 6 times per night. In July 2015, he reported a history of "some sensation of difficulty in urination." His medication was subsequently changed, and he reported voiding normally at the time of his appointment. In February 2016, VA treatment records reflect voiding twice per night as his only symptom. In March 2016, VA treatment records reflect a history of benign prostatic hypertrophy. In February 2017, the Veteran reported voiding well, denying weak stream, frequency, or hesitancy. He did endorse urgency with frequent episodes of urge incontinence without the use of pads, as well as occasional nocturia. In February 2018, VA treatment records reflect ongoing usage of medication for decreased stream with no present complaint of a decreased stream. He had occasional urgency with no leaking. In his April 2018 hearing before the undersigned, the Veteran reported issues with control and incontinence. He also endorsed burning with urination. VA treatment records from February 2019 reflect increasing complaints of urgency. In March 2019, the Veteran underwent another consultation for urinary incontinence. He continued to experience urge/stress urinary and fecal incontinence since around 2018. He had nocturia 0 to 3 times per night. He did not use pads, and he was not on medication for his urinary symptoms. In December 2019, the Veteran was provided another VA examination to assess the severity of the residuals of his prostate cancer. He reported increased difficulty with bowel movements or urination and incontinence. He experienced leakage that required absorbent material changed 2 to 4 times per day. No appliances were used to treat his symptoms. Prostate cancer residuals did not cause increased frequency, nor were there signs or symptoms of obstructed voiding. There were also no recurrent urinary tract infections, nor other residual conditions. In March 2020, VA treatment records refect that the Veteran denied urinary complaints. His medical history noted benign prostatic hypertrophy with urge incontinence, a mildly obstructive prostate, and mucosal prostatitis. In June 2020, VA treatment records show ongoing urge incontinence related to benign prostatic hypertrophy with nocturia 3 times per night without retention, hematuria, or dysuria. In November 2020, a third opinion was obtained with respect to the Veteran's residuals of prostate cancer. The examiner explained that, while his previous urge incontinence was attributed to his residuals of prostate cancer, these urinary symptoms were actually the result of the benign prostatic hypertrophy, a condition unrelated to his prostate cancer. The cancer itself remained in remission, and there was no evidence of residuals directly attributable to the Veteran's prostate cancer. After a thorough review of the evidence of record, the Board finds that the Veteran is entitled to the following ratings for his prostate cancer residuals following the total evaluation for surgery: 20 percent from January 7, 2013, to February 10, 2015, and 40 percent thereafter. Prior to February 10, 2015, the Veteran's records reflect that he experienced urinary frequency with daytime voiding every 1 to 2 hours and nighttime awakening approximately 3 to 4 times per night. The Veteran's symptoms improved towards the end of this period, and he was noted to be "totally asymptomatic" in December 2014. During this period, there is no evidence that he used absorbent materials, voided during the day more than once per hour or voided 5 or more times at night, or that he experienced urinary retention requiring intermittent or continuous catheterization. While seemingly improving, the Veteran subsequently reported nighttime voiding 4 to 5 times per night in February 2015. Subsequent clinical reports reflected some resistance on urination, and varying nocturia. The Veteran did not require the use of an appliance or wearing absorbent materials that required changing more than 4 times per day. These problems continued through March 2019 when he underwent another urology consultation for ongoing symptoms. At this time, the Veteran's urinary symptoms were more directly related to his benign prostatic hypertrophy and not his service-connected prostate cancer residuals. This distinction was confirmed by the November 2020 VA examination report indicating that the Veteran's prostate cancer did not have residuals, remained in remission, and the urinary symptoms were directly related to this nonservice-connected benign prostatic hypertrophy. Thus, prior to February 10, 2015, the preponderance of the evidence of record fails to reflect that an evaluation in excess of 20 percent is warranted based upon the Veteran's reported symptoms. On February 10, 2015, the Veteran contacted his clinician about increased nocturia. The next indication, however, of benign prostatic hypertrophy occurred in March 2016, and the November 2020 VA examination report did not specifically state when the residuals from prostate cancer ceased and the Veteran's exhibited symptoms became a result of this nonservice-connected condition. Thus, resolving reasonable doubt in favor of the Veteran, the February 2015 reports of increased nighttime awakenings may have been a residual of his prostate cancer. It was not until later that these symptoms were specifically associated with benign prostatic hypertrophy; however, the Board will not retroactively reduce the Veteran's ratings for his service-connected disability based upon this evidence. Similarly, the Board will not remand for negative evidence in order to determine precisely when benign prostatic hypertrophy began to cause the Veteran's urinary symptoms. Resolving reasonable doubt in favor of the Veteran, the evidence of record supports a 40 percent evaluation for residuals of his prostate cancer effective February 10, 2015. The preponderance of the credible, probative evidence of record fails to establish that these residuals warranted a rating in excess of 20 percent prior to that date, or a rating in excess of 40 percent for the remaining period on appeal. REASONS FOR REMAND 1. The claim of entitlement to service connection for hypertension is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain an adequate medical opinion with respect to the etiology of the Veteran's hypertension. Medical opinions on this question were provided January 2013, December 2019, and November 2020. The Veteran's personnel records reflect service in the Republic of Vietnam during the Vietnam era, and exposure to herbicide agents has been conceded. Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e), the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). Unfortunately, the previous medical opinions of record did not address any herbicide agent exposure in their conclusions. Thus, remand is necessary in order to obtain a medical opinion that addresses the Veteran's conceded exposure to herbicide agents in the Republic of Vietnam. The matters are REMANDED for the following action: 1. Obtain a medical opinion to assess the etiology of the Veteran's hypertension. A complete copy of the claims file must be provided to the examiner, including a copy of this remand. After a thorough review of the record, the examiner should opine as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during active service, is related to an incident of service, or began within one year after discharge from active service, to include as due to exposure to herbicide agents? To note, although hypertension is not presumptively related to herbicide agent exposure, this presumption does not bar the finding of a direct etiological relationship. The examiner may not state that it is less likely as not that the Veteran's hypertension is related to active duty service because it is not a presumptive condition of herbicide agent exposure. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 2. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Appellant and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.