Citation Nr: 21027684 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-45 717 DATE: May 6, 2021 ORDER Entitlement to a rating in excess of 20 percent for residuals of prostate cancer, to include voiding dysfunction and renal dysfunction, from January 1, 2012, to December 19, 2012, is denied. Entitlement to a rating of 40 percent for residuals of prostate cancer, to include voiding dysfunction and renal dysfunction, beginning December 20, 2012, is granted. Entitlement to a rating in excess of 60 percent disabling residuals of prostate cancer, to include voiding dysfunction and renal dysfunction, beginning February 19, 2016, is denied. FINDINGS OF FACT 1. From January 1, 2012, to December 19, 2012, the Veteran experienced voiding dysfunction that required wearing of absorbent materials which must be changed less than 2 times per day. 2. Beginning December 20, 2012, the Veteran experienced voiding dysfunction that required that wearing of absorbent materials which must be changed 2 to 4 times per day. 3. Beginning February 19, 2016, the Veteran's voiding dysfunction required the use of an appliance. CONCLUSIONS OF LAW 1. Beginning January 1, 2012, through December 19, 2012, the criteria for a rating greater than 20 percent for residuals of prostate cancer, to include voiding dysfunction and renal dysfunction, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.115b (Diagnostic Code 7528). 2. Beginning December 20, 2012, the criteria for a rating of 40 percent for residuals of prostate cancer, to include voiding dysfunction and renal dysfunction, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.115b (Diagnostic Code 7528). 3. Beginning February 19, 2016, the criteria for a rating greater than 60 percent for residuals of prostate cancer, to include voiding dysfunction and renal dysfunction, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.115b (Diagnostic Code 7528). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1963 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from the December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a February 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in July 2020 and was remanded for further development. Entitlement to increased ratings for residuals of prostate cancer, to include voiding dysfunction and renal dysfunction The Veteran's service-connected residuals of prostate cancer is currently evaluated under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Veteran's prostate cancer is currently rated as 100 percent disabling from March 22, 2010; 20 percent disabling from January 1, 2012; 40 percent disabling from July 15, 2015; and, 60 percent disabling from February 19, 2016. Diagnostic Code 7528 pertains to malignant neoplasms of the genitourinary system and provides for a maximum 100 percent disability rating for six months following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. At the expiration of six months, a VA examination is required; if there has been no local reoccurrence or metastasis, the disability is then rated on residuals such as voiding dysfunction or renal dysfunction, whichever is the predominant manifestation. See 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7528. Prostate disabilities are rated based on the criteria pertinent to voiding dysfunction, to include urinary leakage, urinary frequency, or obstructive voiding. Voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day warrants a 60 percent rating. Voiding dysfunction requiring the wearing or absorbent materials which must be changed two to four times a day warrants a 40 percent rating. Voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times a day warrants a 20 percent rating. 38 C.F.R. § 4.115a. Urinary frequency with daytime voiding intervals less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Daytime voiding intervals between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding intervals between two and three hours, or; awakening to void two times per night warrants a 10 percent rating. 38 C.F.R. § 4.115a. Obstructed voiding with urinary retention requiring intermittent or continuous catherization warrants a 30 percent rating. A 10 percent rating is warranted with 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 dilation every two to three months. A noncompensable rating is warranted with obstructive symptomatology with or without stricture disease requiring dilation one to two times a year. 38 C.F.R. § 4.115a. As noted above, this matter was previously before the Board in June 2020 and was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names of any health care providers who have provided treatment for his prostate cancer. Additionally, the AOJ was directed to obtain any outstanding VA treatment records and schedule the Veteran for a VA examination to determine the current severity of the Veteran's service-connected prostate cancer residuals. Specifically, the examiner was directed to comment as to whether the Veteran's kidney stones are considered to be a residual of his prostate cancer. The Board finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). Beginning January 1, 2012 In June 2011, the Veteran underwent a VA prostate cancer examination. The Veteran did not report any systemic symptoms and stated having an occasional leakage that does not require medical treatment. The Veteran reported wearing one absorbent pad a day for prevention purposes. No other urinary symptomatology was noted. As a result of this VA examination, in an October 2011 rating decision, the Veteran's evaluation of prostate cancer was decreased from 100 to 20 percent with an effective date of January 1, 2012. Subsequently, in February 2012, the Veteran underwent another VA prostate cancer examination. The examiner noted that the Veteran had a laparoscopic robotic prostatectomy on June 10, 2010. The examiner noted that the Veteran does not have a voiding dysfunction or urinary tract/kidney infection. The examiner stated that the Veteran does not have any other residual conditions or complications associated with his prostate cancer. The Board finds that beginning January 1, 2012, entitlement to a rating in excess of 20 percent for residuals prostate cancer is not warranted. Specifically, the medical and lay evidence of record does not demonstrate that the Veteran's voiding dysfunction required the wearing of absorbent materials which must be changed 2 to 4 times per day. Additionally, the Veteran's prostate cancer residuals did not manifest in daytime voiding intervals less than one hour or awakening to void five or more times per night. Therefore, entitlement to a rating in excess of 20 percent beginning January 1, 2012, is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Beginning December 20, 2012 On December 20, 2012, the Veteran submitted a statement noting that since his 2010 prostatectomy, he experienced an increase in urinary incontinence and was using 2 to 4 absorbent pads a day. A private June 2013 medical treatment note states that the Veteran has ongoing incontinence issues and uses 2-3 pads a day. In November 2013, the Veteran underwent another VA prostate cancer examination. The examiner stated that the Veteran has a voiding dysfunction that causes urine leakage. This dysfunction requires absorbent material which must be changed less than two times per day. The examiner noted that the Veteran's voiding dysfunction does not require the use of an appliance and does not cause increased urinary frequency. Additionally, the Veteran's voiding dysfunction was noted to not cause signs or symptoms of obstructed voiding. The examiner noted that the Veteran does not have a history of recurrent symptomatic urinary tract or kidney infections. However, the Veteran was noted to have erectile dysfunction. No other residual conditions or complications due to prostate cancer or treatment were noted. The examiner stated that the Veteran's prostate cancer does not impact his ability to work. The examiner concluded that the veteran presented wearing an absorbent pad which was dry and without any visible urine strain. The Veteran was noted to be asymptomatic and is pending a six month urology evaluation in December 2013. A June 2014 private medical treatment record notes that the Veteran experienced urinary incontinence and was using 2-3 pads per day. The medical evidence of record demonstrates that beginning December 20, 2012, the Veteran's prostate cancer residuals was manifested by voiding dysfunction that required that wearing of absorbent materials which must be changed 2 to 4 times per day. Therefore, the Board finds that beginning December 20, 2012, the Veteran's residuals of prostate cancer warrants a 40 percent rating. A higher rating of 60 percent is not warranted as medical and lay evidence does not demonstrate that the Veteran's voiding dysfunction requires the use of an appliance or the wearing of absorbent material which must be changed more than 4 times per day. Beginning February 19, 2016 On February 19, 2016, the Veteran had a male sling surgically implanted for incontinence. Following the June 2020 Board remand, a September 2020 letter was sent to the Veteran asking for authorization to obtain outstanding private treatment records. Additionally, the Veteran's VA treatment records were associated with the claims file. In February 2021, the Veteran also underwent a VA prostate cancer examination. The examiner stated that the Veteran's prostate cancer is currently in remission. The examiner noted that the Veteran has a voiding dysfunction that causes urine leakage. The examiner stated that the Veteran's urine leakage does not require the wearing of absorbent material, however, it does require the use of an appliance. Additionally, the Veteran's voiding dysfunction causes increased urinary frequency resulting in daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times. The Veteran's voiding dysfunction also causes signs of symptoms of obstructed voiding as manifested by marked hesitancy, markedly slow stream, and a markedly weak stream. The Veteran was noted to also have erectile dysfunction, which was noted to be at least as likely as not attributable to his prostate cancer. (The Board notes that the Veteran is already in receipt of service connection for erectile dysfunction). The examiner stated that the Veteran does not have any other residual conditions or complications due to his prostate cancer or treatment. The examiner stated that the Veteran's prostate cancer impacts his ability to work as he has difficulty performing strenuous tasks that require exertion due to fatigue such as heavy lifting over 5 lbs. and walking more than ten minutes. A separate February 2021 VA prostate cancer residuals opinion was also provided regarding whether or not the Veteran's kidney stones are a residual of his prostate cancer. The examiner opined that it is less likely than not that the Veteran's kidney stones are a residual of the Veteran's prostate cancer as there are no medical studies that show a relationship between the two conditions. The examiner explained that prostate cancer may cause urinary problems but does not cause kidney stones. The Board finds that entitlement to a rating in excess of 60 percent for prostate cancer residuals beginning February 19, 2016 is not warranted. The Board notes that the Veteran is currently receiving the highest schedular rating under voiding dysfunction and the only higher rating would be available under renal dysfunction. However, the medical and lay evidence of record does not demonstrate that the Veteran experiences renal dysfunction as a residual of his prostate cancer. Therefore, entitlement to a rating in excess of 60 percent for residuals of prostate cancer beginning February 19, 2016, is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.