Citation Nr: 21027629 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-25 274 DATE: May 6, 2021 ORDER A compensable disability rating for residuals of prostate cancer, from April 26, 2012 to September 18, 2013, is denied. A disability rating in excess of 20 percent for residuals of prostate cancer, from September 18, 2013 to March 28, 2017, is denied. A disability rating of 40 percent for residuals of prostate cancer, but no higher, is granted from March 28, 2017. REMANDED Entitlement to a separate disability rating for impairment of sphincter control is remanded. FINDINGS OF FACT 1. Prior to September 18, 2013, the Veteran's residuals of prostate cancer were asymptomatic. 2. For the period from September 18, 2013 to March 28, 2017, the Veteran's residuals of prostate cancer manifested by increased urinary frequency resulting in awakening to void three to four times per night. 3. As of March 28, 2017, the Veteran's residuals of prostate cancer manifested by increased urinary frequency resulting in awakening to void five or more times per night, with obstructed voiding. CONCLUSIONS OF LAW 1. For the period from April 26, 2012 to September 18, 2013, the criteria for entitlement to a compensable rating for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. 2. For the period from September 18, 2013 to March 28, 2017, the criteria for entitlement to a rating in excess of 20 percent, for residuals of prostate cancer, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. 3. As of March 28, 2017, the criteria for entitlement to a rating of 40 percent, but no higher, for residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1966 to February 1970, and from March 1970 to January 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. In March 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. These claims were previously before the Board in February 2018 and February 2020. In the latter decision, the Board, inter alia, denied the claims for an increased disability rating for prostate cancer residuals. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred in its February 2020 rating decision when it did not provide an adequate statement of reasons or bases, to include addressing whether the Veteran's condition warranted a separate rating under Diagnostic Code 7332, for impairment of sphincter control. The Court then vacated those parts of the February 2020 decision concerning the matters and remanded them to the Board. Increased Rating Disability ratings are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38U.S.C. §1155 ;38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's prostate cancer residuals are rated under Diagnostic Code 7528, as that is the Diagnostic Code designed specifically to rate malignant neoplasms of the genitourinary system. Under this Diagnostic Code, based on the NOTE, residuals are to be rated "as voiding dysfunction or renal dysfunction, whichever is predominant." 38 C.F.R. § 4.115b. The Note to Diagnostic Code 7528 states that following the cessation of medical intervention, and following a period of 100 percent rating, "[i]f there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant." 38 C.F.R. § 4.115b. In this case, the Veteran's prostate cancer residuals have predominantly been characterized by voiding dysfunction and urinary frequency. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. For evaluations based on urine leakage, due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. A 20 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115b, Diagnostic Code 7528. For evaluations based on urinary frequency, a 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. Daytime urinary frequency intervals between one and two hours or nocturia three or four times a night warrants a 20 percent rating. A 10 percent evaluation is warranted for daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. For evaluations based on obstructed voiding, a 0 percent rating requires obstructive symptomatology with or without stricture disease requiring periodic dilatation 1 to 2 times per year. A 10 percent rating requires 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 flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Id. From April 26, 2012 to September 18, 2013 The Veteran seeks a compensable rating for residuals of prostate cancer for the period prior to September 18, 2013. His initial claim for residuals of adenocarcinoma prostate cancer was granted effective April 26, 2012, the date he applied for service connection. The Veteran's condition has been previously rated in stages, as the severity of his symptoms has evolved over time. The Veteran filed a claim for service connection for residuals of his prostate cancer in April 2012, though his brachytherapy procedure had been performed in November 2002. Medical records indicate that at the time he was evaluated for his claim, the Veteran's cancer was in remission. Thus, the Veteran's condition should be properly rated under the criteria for residuals under 38 C.F.R. § 4.115a. The medical evidence of record does not show that the Veteran has experienced renal dysfunction, and therefore the Veteran's residuals should be rated considering the severity of voiding dysfunction and urinary frequency. 38 C.F.R. § 4.115a. As noted supra, under the criteria for voiding dysfunction, the Veteran would have to show a disability requiring the use of absorbent materials which must be changed less than twice a day in order to warrant a 20 percent disability rating, the next highest. Under the criteria for urinary frequency, the next highest rating, 10 percent, is appropriate when the condition is manifested by daytime voiding interval between two and three hours, or; awakening to void two times per night. The Veteran was afforded a VA Compensation and Pension examination in August 2013 to determine the severity of his prostate cancer residuals. The examiner documented that the Veteran's prostate cancer was in remission, and at that time he did not experience a voiding dysfunction. The Veteran's private medical treatment records generally correspond with these findings. From shortly after his brachytherapy procedure in November 2002 until November 2009, the Veteran's private physician documented consistent findings of normal bladder function. On several occasions, the private physician noted that the Veteran awakened one or two times per night to urinate (also called nocturia). However, the most recent notation of nocturia twice per night was in June 2006. In July 2007, the physician noted nocturia had slowed to once per night. In November 2009, the physician described the Veteran's bladder function as "normal." The Board finds that from April 26, 2012 to September 18, 2013, the evidence of record shows that the Veteran's residuals of prostate cancer were not manifested by voiding dysfunction. The evidence of record does not show that the Veteran required the use of absorbent materials or appliance. The Veteran's urinary frequency was normal, and unobstructed. He did not have a urinary tract or kidney infection, and did not experience renal dysfunction. Accordingly, the Board finds that for this period, a 0 percent rating is appropriate. A higher rating is not appropriate because the evidence does not show that the Veteran experienced voiding dysfunction, renal dysfunction, voiding obstruction, or infection during this period. Thus, claim for an increased rating must be denied for the period from April 26, 2012 to September 18, 2013. In reaching this conclusion, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to an initial compensable disability rating. As such, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. From September 18, 2013 to March 28, 2017 On September 18, 2013, the Veteran filed a Notice of Disagreement in which he asserted that he awoke 3 to 4 times per night to urinate. The Veteran re-asserted this statement in July 2014 on a VA Form 9. In January 2015, he submitted a calendar he used to track his urination and bowel movements for three months. The calendar shows the Veteran had nocturia at least 3 and sometimes 4 times per night through that period. During the day, the Veteran urinated up to 12 times per day, and noted that he experienced dribbling, although he did not require the use of absorbent materials. In April 2015, the Veteran underwent a VA examination related to his claim. At that time, he reported voiding dysfunction with urine leakage, which did not require the use of absorbent materials. Urinary frequency was measured as daytime voiding interval between 1 and 2 hours, and nighttime awakening to void 3 or 4 times. No signs or symptoms of obstructed voiding were noted. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). No evidence of record contradicts the Veteran's statements. Thus, the Board affords the Veteran's lay statements high probative value. Based on these statements, and the findings of the April 2015 VA examination, the Board finds that the Veteran's symptoms manifested to a 20 percent rating from September 18, 2013. It was this date when he first reported nocturia 3 to 4 times per night, a finding that was confirmed by the April 2015 VA examination. However, a higher rating of 30 percent is not appropriate during this period, because the evidence does not demonstrate renal dysfunction, urinary tract infection, or obstructed voiding requiring intermittent or continuous catheterization. Similarly, a higher rating of 40 percent is not appropriate under voiding dysfunction criteria. The Veteran's daytime voiding dysfunction did not manifest with urinary frequency of less than one-hour intervals, nor awakening to void five or more times per night. The Veteran did not require the wearing of absorbent materials or appliances. Thus, the Board finds that for the period from September 18, 2013 to March 28, 2017, a 20 percent rating, but no higher, is appropriate. As of March 28, 2017 On March 28, 2017, the Veteran testified at a hearing before the Board. At that time, he testified that he used the restroom 8 to 10 times during the day, and that his nocturia had increased to 4 or 5 times per night. In May 2018, the Veteran was afforded another VA examination to determine the severity of the residuals of his prostate cancer. The examiner documented the Veteran's voiding dysfunction and noted that it caused urine leakage, but it did not require the wearing of absorbent materials or appliances. The examiner checked blocks on a form indicating that the Veteran's daytime urinary frequency was between 1 and 2 hours, and that he awakened to void 5 or more times per night. The examiner documented obstructive voiding described by marked hesitancy, marked slow stream, marked weak stream, and marked decrease force of stream. The Veteran did not have urinary tract or kidney infections, or any renal dysfunction. No other residual conditions or complications were noted. Based on this evidence, the Board finds that a 40 percent rating is warranted from March 28, 2017, the date the increased symptoms were noted. The Board finds it persuasive that the May 2018 VA examiner confirmed that the Veteran's prostate cancer residuals had increased in severity to the level contemplated by the 40 percent rating criteria in 38 C.F.R. § 4.115b. The Veteran's obstructed voiding was a previously undocumented manifestation of his prostate cancer residuals, and warranted a 30 percent rating under the rating criteria. The Veteran's frequency of urination reached the maximum rating of 40 percent under the urinary frequency criteria, as the Veteran's nocturia had increased to five or more times per night. The Board finds that, for this period, a higher rating of 60 percent is not appropriate, as the Veteran's voiding dysfunction does not require the use of an appliance or wearing of absorbent materials which must be changed 2 to 4 times per day. Accordingly, a 40 percent rating, but no higher, is granted effective March 28, 2017. REASONS FOR REMAND As noted above, the parties to the JMPR agreed that the Board erred when it did not discuss the possibility of a separate rating, under Diagnostic Code 7332, for impairment of sphincter control. The record contains an October 2002 private treatment note which informed the Veteran that loose bowel movements were a potential side effect of radiation treatments; since that time, he has reported and documented bowel impairment. Thus, the Board finds that a medical opinion is necessary to determine whether the Veteran's reported bowel impairment is due to, or aggravated by, his service-connected prostate residuals. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (when the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: Arrange for the Veteran's record to be provided to an appropriate medical professional so as to render an opinion on the nature and etiology of any impairment of sphincter control. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner is asked to address whether, at any time during the period on appeal, the Veteran has had impairment of sphincter control. If so, the examiner is asked to indicate whether the impairment is at least as likely as not (that is, a 50 percent or greater probability) due to, or aggravated by, the Veteran's service-connected residuals of prostate cancer. The examiner must provide separate findings and rationales relating to causation and aggravation, with the understanding that aggravation does not require that there be "permanent" worsening of the nonservice connected disability. A detailed rationale is requested for all opinions expressed. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.