Citation Nr: 21026885
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 13-02 313
 DATE: May 4, 2021

ORDER

The reduction of rating for prostate cancer, decreased from 100 percent to 20 percent disabling, effective January 1, 2012, was proper and restoration of the 100 percent rating is denied.

Entitlement to a 60 percent rating for prostate cancer for the appeal period of December 4, 2013 to April 14, 2014 is granted.

Entitlement to an increased rating for prostate cancer, rated as 20 percent disabling from January 1, 2012 to August 7, 2013; 30 percent from August 8, 2013 to December 3, 2013; and 60 percent from April 15, 2014 to August 4, 2020 is denied.

FINDINGS OF FACT

1. The reduction of rating for prostate cancer, decreased from 100 percent to 20 percent disabling, effective January 1, 2012, was proper.

2. For the appeal period from January 1, 2012 to August 7, 2013, the Veteran's prostate cancer manifested as a slow or weak stream without urine leakage requiring the wearing of absorbent materials which must be changed two to four times per day, daytime voiding interval of less than one hour, awakening to void five or more times per night, did not require intermittent or continuous catheterization or renal dysfunction.

3. For the appeal period from August 8, 2013 to December 3, 2013, the Veteran's prostate cancer manifested as requiring catheterization without wearing of absorbent materials which must be changed two to four times per day, daytime voiding interval less than one hour, awakening to void five or more times per night or renal dysfunction.

4.  For the appeal period from December 4, 2013 to August 4, 2020, the Veteran's prostate cancer manifested as nocturia (eight to nine times per night), a daytime voiding interval of less than one hour and requiring the wearing of absorbent materials which must be changed more than four times per day without renal dysfunction, regular dialysis, persistent edema and albuminuria; BUN 40 to 80 mg percent, creatinine 4 to 8 mg % or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.

CONCLUSIONS OF LAW

1.  The reduction of rating for prostate cancer, decreased from 100 percent to 20 percent disabling, effective January 1, 2012, was proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.115a, 4.115b, Diagnostic Code 7528.

2.  The criteria for entitlement to a 60 percent rating for prostate cancer for the appeal period of December 4, 2013 to April 14, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102. 4.14.14. 4.115b, Diagnostic Code 7528.

3.  The criteria for entitlement to an increased rating for prostate cancer, rated as 20 percent disabling from January 1, 2012 to August 7, 2013; 30 percent from August 8, 2013 to December 3, 2013; and 60 percent from April 15, 2014 to August 4, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102. 4.14.14. 4.115b, Diagnostic Code 7528.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from June 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran filed an original claim for prostate cancer in December 2009. The RO granted service connection for prostate cancer at a rating of 100 percent, effective December 3, 2009. Subsequently, in October 2011, the RO reduced the Veteran's rating to 20 percent, effective January 1, 2012.  In a May 2018 decision rating decision, the RO increased the rating to 30 percent, effective August 8, 2013, and to 60 percent, effective April 15, 2014. 

The matter subsequently came before the Board in June 2018 whereupon it was remanded to allow for additional development, to include obtaining outstanding treatment records and to schedule the Veteran with a VA medical examination to determine the current severity of his disability. VA provided the Veteran with an examination and the matter returned again before the Board in December 2020, whereupon it was remanded again to allow for obtaining outstanding treatment records. 

In regard to the outstanding records, VA sent correspondence to the Veteran requesting him to complete a VA Form 21-4142 so that VA could obtain the records in question. To date, the Veteran has not responded to VA's request. The Board notes here that VA's duty to assist is not a one-way street. The Veteran also has an obligation to cooperate with VA in ensuring that duty is satisfied. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied its duties and finds that there has been substantial compliance with its remand. Stegall v. West, 11 Vet. App. 268 (1998). The matter is now again before the Board for adjudication.

An August 2020 rating decision assigned a 100 percent rating for prostate cancer, effective August 5, 2020. This is the maximum schedular rating. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim for the appeal period prior to August 5, 2020 is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c).

Applicable Statues and Regulations

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999).

The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case it not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. 38 C.F.R. § 3.344(a), (b); see 38 C.F.R. § 3.343.

For disabilities that have not continued at the same level for five or more years, which are not considered stabilized and are seen as likely to improve. reexaminations disclosing such improvement in these disabilities will warrant a reduction in rating.

Disability evaluations are determined by evaluating the extent to which a veteran's service connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities 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 U.S.C. § 1155; 38 C.F.R. § 4.1.

The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, 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.

Where there is a question as to which of two evaluations (ratings) shall be applied, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

VA should 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. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's condition is rated under the General Rating Formula for Ratings of the Genitourinary System  Dysfunctions. These guidelines provide that for prostate cancer, if there has been no local reoccurrence or metastasis, the condition is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.

Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a.

Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent rating is warranted. When there is leakage requiring the wearing of absorbent materials which must be changed two to four times per day, a 40 percent rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a.

Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent rating contemplates daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 10 percent rating contemplates daytime voiding interval between two and three hours, or awakening to void two times per night. 38 C.F.R. § 4.115a. 

Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates 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 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 38 C.F.R. § 4.115a. 

Renal dysfunction manifested by constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 warrants a 30 percent rating. Renal dysfunction resulting in albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under diagnostic code 7101 warrants a 60 percent rating. Renal dysfunction manifested by persistent edema and albuminuria with BUN 40 to 80 mg%, or creatinine 4 to 8 mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, warrants an 80 percent rating. Finally, renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8 mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. 38 C.F.R. § 4.115a.

1.  The reduction of rating for prostate cancer, decreased from 100 percent to 20 percent disabling, effective January 1, 2012, was proper.

The Veteran asserts that the VA improperly reduced his rating. Additionally, he asserts he is entitled to an increased rating for his prostate cancer disability, because, during the appeal period, the Veteran's disability has manifested at a worse level of severity than contemplated by the assigned ratings. 

The Veteran was granted service connection for his prostate cancer in an August 2010 rating decision and assigned a 100 percent rating, effective December 3, 2009. A June 2011 rating decision proposed to reduce the rating for prostate cancer from 100 percent to zero percent. An October 2011 rating decision implemented the proposed reduction and assigned a 20 percent rating from January 1, 2012. 38 C.F.R. § 3.344(c) provides that the protective provisions of 38 C.F.R. § 3.344 shall not apply for ratings that have been in effect for less than five years. As the Veteran's rating was in effect for less than five years before it was reduced, the protective provisions of 38 C.F.R. § 3.344 are not for application in this matter. 

When a rating reduction is warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared, setting forth all material facts and reasons for the proposed reduction. 38 C.F.R. § 3.105(e). The Veteran must then be given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. 

With respect to the procedures delineated in 38 C.F.R. § 3.105(e) for properly notifying a veteran of a proposed rating reduction, the Board finds the RO in compliance. First, the RO notified the Veteran of the proposed rating reduction, as well as his rights in challenging this proposed reduction, in a rating decision in June 2011 and a letter dated in June 2011. See Notification Letter  June 10, 2011. The reduction was then assigned in an October 2011 rating decision, effective January 1, 2012. Thus, the notice requirements for a reduction of a rating have been met.

The Veteran's rating was reduced on the basis of an April 2010 VA examination that found no evidence of residuals or complications remaining from the Veteran's prostate cancer disability. Additionally, the Veteran reported having no obstruction in voiding, excessive frequency of voiding, or incontinence. The examination found that the Veteran suffered from nocturia (awakening at night to urinate) at least once per night.

The Veteran was provided another VA examination in September 2011. Voiding dysfunction was found requiring changing absorbent materials less than two times per day. Urinary frequency was noted at a daytime voiding interval of one to two hours and a nighttime awakening (nocturia) of twice per night. The Veteran did not require the use of an appliance. 

Upon a review of the evidence of record, the Board finds that the Veteran's rating was properly reduced. The April 2010 examination revealed findings of nocturia  once per night with no incidence of residuals or complications and no obstruction in voiding, excessive frequency of voiding, or incontinence. The September 2011 examination made findings of changing absorbent materials less than two times per day and a daytime voiding interval of one to two hours with nighttime awakening (nocturia) of twice per night. These criteria are contemplated under the 20 percent rating for urine leakage (changing absorbent materials less than twice per day) and the 20 percent rating for urinary frequency (daytime voiding interval between one and two hours). This shows that the Veteran's disability had improved under the ordinary conditions of life and work and the Veteran's disability picture, as revealed in the April 2010 and September 2011 examination findings, fits into the criteria properly rated at 20 percent. Thus, the Board finds that the reduction in rating to 20 percent, effective January 1, 2012, was proper. 

The Veteran was subsequently prescribed catheters in August 2013. The Board notes that usage of catheters warrants a 30 percent rating. Thus, the increase in rating to 30 percent in August 2013 was also proper.

The Board has also considered the Veteran's lay statement provided in his Form 9, filed January 2013, in which the Veteran stated his condition was worsening. He felt a frequent need to urinate, and when such need was felt, it was immediate. The frequency had increased to every forty-five minutes. The Veteran also reported that he had to wear "Depends" (absorbent underwear) and also required the usage of catheters in order to completely void his kidneys. The Board notes here however that the record does not indicate the usage of catheters until August 2013 (as shown by the Veteran's prescription for catheters  August 8, 2013). Additionally, the Board notes that while the Veteran is competent to report symptoms that he personally experiences because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his cervical condition according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, support a finding that VA's reduction in rating was proper.

In conclusion, the Board finds that VA properly reduced the Veteran's rating. Urine leakage requiring the wearing of absorbent materials which must be changed less than two times per day and urine frequency of a one to two hour voiding interval are criteria warranting a 20 percent rating. 38 C.F.R. § 4.115a. The evidence shows that the Veteran required the usage of Depends which had to be changed less than two times per day and had a voiding interval between one and two hours, thus exhibiting symptoms directly contemplated under a 20 percent rating. Such improvement reflects improvement in ability to function under ordinary conditions of life and work. There is no contrary post-reduction evidence. The Veteran was not prescribed catheters until August 8, 2013, and in the next section of this decision, the Board has agreed to increase his rating on that date.

The weight of the evidence is against restoration of a 100 percent rating for prostate cancer.  Accordingly, the appeal as to the restoration of the 100 percent rating for prostate cancer is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

2.  Entitlement to increased rating for prostate cancer

The Veteran's prostate cancer was rated as 100 percent disabling prior to January 1, 2012; 20 percent disabling from January 1, 2012 to August 8, 2013; 30 percent disabling from August 8, 2013 to April 15, 2014; 60 percent disabling from April 15, 2014 to August 5, 2020; and 100 percent disabling from August 5, 2020 to the present.

The Board will review the VA examinations and other evidence for the appeal periods from January 1, 2012 to August 5, 2020.  The Board notes that the Veteran is rated as 100 percent disabling beginning on August 5, 2020 and that this is the maximum schedular rating available. Hence, analysis for an increased rating for this appeal period is not necessary.

Appeal period from January 1, 2012 to August 7, 2013

The Veteran's April 2012 VA treatment note notes "frequent urination" but does not specify how many times per day or night or the intervals in between. 

The Board has considered a medical note ("Urology Note") from February 2013, which discusses the Veteran's issues with voiding, stating "[patient] reports that when he does void on his own that the stream is slow and weak. When voiding on his own, [he] does not feel like emptying well."

The Board notes that obstructed voiding/urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. The Veteran has not alleged, and the record does not establish, the wearing absorbent materials which must be changed two to four times per day, daytime voiding interval less than one hour, awakening to void five or more times per night or renal dysfunction. Therefore, a rating in excess of 20 percent for this appeal is not warranted.

Appeal period from August 8, 2013 to December 3, 2013

The appeal period of August 8, 2013 to April 14, 2014, currently rated at 30 percent, will be split into two periods, from August 8, 2013 to December 3, 2013 and from December 4, 2013 to April 14, 2014. This period is being split into two separate periods because medical evidence from December 4, 2013 establishes a higher rating for the Veteran's disability. 

The Board has considered a private treatment note dated August 8, 2013, which contains an attached prescription for catheters. The Veteran was prescribed one box of catheters with eleven refills, presumably for a year's supply.

The record also shows that the Veteran was prescribed incontinence pads (DEPENDS) in October 2013. See Medical Treatment Record  Non-Government Facility, October 2013. The record does not specify the number of Depends required per day at this time.

The appeal period from August 8, 2013 to December 3, 2013 remains correctly rated, as the Veteran is in receipt of a 30 percent rating for catheterization during this period. The Veteran has not alleged, and the record does not establish, leakage requiring the wearing of absorbent materials which must be changed two to four times per day, daytime voiding interval less than one hour, awakening to void five or more times per night or renal dysfunction. Therefore, a rating higher than 30 percent is not warranted for this appeal period.

Appeal period from December 4, 2013 to April 13, 2014

The Board has also considered a VA treatment note, dated December 4, 2013. The note mentions that the Veteran suffers from nocturia (frequent awakening at night to urinate), with a frequency of eight to nine times per night. The Veteran was also noted to have a daytime voiding interval of less than an hour. Further, the Veteran was noted as having to change his absorbent underwear six to eight times per day. 

Additionally, the Board has reviewed a statement, dated November 18, 2013, submitted by the Veteran in support of his appeal. The Veteran stated that he had been prescribed catheters and protective underwear (absorbent materials) because of the "frequency of [his] bathroom trips and the extreme urgency of having to go immediately when I feel the urge to prevent soiling my clothes." Although the Veteran did not specify the number of times he had to void per night; nor the intervals between each voiding; nor the number of times he had to change his absorbent underwear; the Board finds that the Veteran's statement is supported by the December 2013 medical treatment note mentioned above. 

The Board also notes the Veteran's January 3, 2014 prescriptions for oxybutynin and finasteride. Both are prescribed to alleviate urinary maladies, including frequent urination. 

Upon a review of the evidence of record, the Board finds that the Veteran's residuals of a prostate cancer warrants a 60 percent rating from December 4, 2013 to April 14, 2014. The Veteran was noted to awake eight to nine times per night to urinate, had a daytime voiding interval of less than one hour and wearing absorbent materials which must be changed more than four times per day. Such functional impairments warrant a 60 percent rating. This is the highest schedular rating available for urine leakage. A rating higher than 60 percent is not warranted as the record does not establish, and the Veteran has not alleged, regular dialysis, persistent edema and albuminuria; BUN 40 to 80 mg percent, creatinine 4 to 8 mg % or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Thus, the Veteran's rating is increased to 60 percent for this period, but no higher.

Appeal period from April 15, 2014 to August 4, 2020

The Veteran's VA examination of April 15, 2014 found that the Veteran continued to suffer from voiding dysfunction, requiring the use of absorbent pads that he had to change more than four times per day. The Veteran was noted to have a daytime voiding interval of less than one hour and nighttime awakening to void five or more times per night. Obstructed voiding or obstructive symptoms were not noted. 

Treatment notes from December 16, 2015 and June 28, 2017 specifically note that the Veteran did not present with any edema. The Board has also reviewed a urology note from September 2017, which notes the Veteran as wearing absorbent underwear three times per day.

The Veteran was provided a VA examination in January 2020, which noted his symptoms as frequent urination everyone to two hours, urinary incontinence, and urine leakage. Edema was not found.

Upon a review of the evidence, the Board finds that, for the period from April 15, 2014 to August 4, 2020, a rating in excess of 60 percent is not warranted. As the Veteran's prostate cancer has not been shown to have made a local reoccurrence or metastasis during this specific period, the Veteran's condition must instead be rated based on voiding dysfunction or renal dysfunction. The Veteran is already in receipt of the highest rating contemplated for voiding dysfunction  60 percent. Alternatively, the Board will apply the ratings for renal dysfunction to see if they may afford the Veteran a higher rating. The record does not establish, and the Veteran has not alleged, persistent edema and albuminuria, BUN 40 to 80 mg percent, creatinine 4 to 8 mg % or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. As such, the Veteran's condition does not warrant a higher rating in excess of 60 percent, for the period of April 15, 2014 to August 4, 2020.

Other Considerations

In assessing the severity of the Veteran's condition, the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his cervical condition according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board places greater probative value on the medical evidence of record and bases its determination on such evidence.

The Board has considered whether a staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted.  Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not asserted at any point in time that he is unable to secure and maintain employment due to his service-connected prostate cancer disability. Moreover, the record shows the Veteran is employed, albeit with some time missed from work, but employed nonetheless, as shown in the Veteran's January 2020 VA examination.  Therefore, a TDIU has not been raised.

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Therefore, the Board finds that a 60 percent rating is warranted for the appeal period from December 4, 2013 to April 15, 2014. However, the preponderance of the evidence is against higher or separate ratings for the other periods on appeal in the Veteran claim and the benefit of the doubt doctrine is not applicable. To that extent, higher ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kashif I. Ali, Associate 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.