Citation Nr: 21040319 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-31 235A DATE: July 3, 2021 ORDER Entitlement to a rating in excess of 40 percent for prostate cancer from February 1, 2011 to November 11, 2020, and in excess of 60 percent from November 12, 2020, forward, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for bowel impairment, status post residual of prostate cancer, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From February 1, 2011, to November 11, 2020, the Veteran's prostate cancer residuals did not result in leakage requiring an appliance or absorbent pads needing more than four changes per day. 2. From November 12, 2020, forward, the Veteran's prostate cancer residuals did not result in renal dysfunction. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent from February 1, 2011, to November 11, 2020, and in excess of 60 percent from November 12, 2020, forward, for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from January 1966 to October 1968. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in January 2017. Earlier that month, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Central Office hearing. A transcript of that hearing is of record. In a November 2020 rating decision, the rating for the Veteran's prostate cancer residuals was increased from 40 percent to 60 percent from November 12, 2020. Entitlement to a rating in excess of 40 percent for prostate cancer from February 1, 2011 to November 11, 2020 In October 2007, the RO awarded the Veteran service connection for prostate cancer and assigned an initial 100 percent rating, effective July 19, 2007. In the November 2010 rating decision on appeal, the RO reduced the 100 percent rating to 40 percent, effective February 1, 2011. The 100 percent evaluation for the Veteran's prostate cancer was assigned under 38 C.F.R. § 4.115b, DC 7528, malignant neoplasms of the genitourinary system, which assigns a 100 percent rating for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate genitourinary dysfunction under 38 C.F.R. § 4.115a. A note after DC 7528 provides that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. Under 38 C.F.R. § 3.105(e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). Initially, the Board has considered whether the claim would be more appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, these provisions are not applicable because the provisions of 38 C.F.R. § 4.115b, DC 7528, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ's action was not a "rating reduction" as the term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992). The rating reduction in this case was procedural in nature and by operation of law. Therefore, the Board must determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under DC 7528. As discussed further below, the Board finds that these requirements have been met. A July 2010 rating decision proposed to reduce the Veteran's prostate cancer rating from 100 percent to 40 percent, in accordance with the criteria of 38 C.F.R. § 4.115b, DC 7528. A July 26, 2010 notification letter was sent to the Veteran and his representative notifying them of the proposal to reduce the prostate cancer rating to 40 percent, resulting in a combined evaluation of 50 percent. The Veteran was informed of his right to submit additional evidence or obtain a personal hearing. He subsequently submitted private treatment records. As noted above, a November 2010 rating decision effectuated the prostate cancer rating decrease to 40 percent, effective February 1, 2011. The Board finds that the discontinuance of the 100 percent evaluation for service-connected residuals of prostate cancer was proper. The Veteran was initially diagnosed as having prostate cancer in May 2007 and underwent brachytherapy in October 2007. He completed treatment in May 2008 or July 2008. See VA examination reports, dated August 27, 2007, and September 2, 2008; Letter from A. Geringer, M.D., dated August 16, 2010. His condition has been in remission since that time. See VA examination report, dated November 12, 2020. There is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under DC 7528 after February 1, 2011. The evidence of record, including pertinent treatment records and VA examinations, does not reveal local recurrence or metastasis of the Veteran's prostate cancer. Further, the Veteran has not asserted that he has had a recurrence of his prostate cancer. Given the lack of recurrence or metastasis of the prostate cancer on or after completion of his treatment in July 2008, the 100 percent rating for prostate cancer was properly discontinued. See 38 C.F.R. § 4.115b, DC 7528; Rossiello v. Principi, 3 Vet. App. at 430. Additionally, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were met and that the reduction was conducted by operation of law under DC 7528. Malignant neoplasms of the bladder are governed by diagnostic code 7528, which provides that the cancer residuals should be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. A voiding dysfunction may be rated according to leakage, frequency or obstruction. For disabilities rated under 38 C.F.R. § 4.115a, only the predominant area of dysfunction shall be considered, even if the Veteran's symptoms encompass multiple categories. 38 C.F.R. § 4.115a. From February 1, 2011 to November 11, 2020, the Veteran's prostate residuals were rated as 40 percent disabling from the table for voiding dysfunction resulting in urinary frequency. This is the maximum rating possible for urinary frequency. A higher, 60 percent, rating is available for leakage if the leakage requires the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. 38 C.F.R. § 4.115a. The Board finds that from February 1, 2011 to November 11, 2020, a 60 percent rating for urinary leakage is not warranted. At a May 2010 VA examination, the Veteran reported occasional episodes of urge leakage but stated that he did not have to wear a pad. An August 2010 letter from Dr. Alan Geringer noted that the Veteran complained of urinary frequency, voiding about every hour, some urgency, no discomfort with urination, good stream, and nocturia. He reported incontinence sometimes; he did not indicate the need to wear any absorbent materials. An August 2010 Progress Note from Dr. Marcos Tepper indicates that the Veteran had incontinence sometimes. In a letter from the Veteran received in November 2011, he stated that he did not wear a pad because he was still working, though it was unclear whether he was referring to urinary or fecal leakage. At the January 2017 Board hearing, the Veteran testified that he wore absorbent material and changed them more than five times a day; however, he stated that this was due to both bowel and bladder leakage. Private medical records from November 2017 to May 2019 indicate that the Veteran reported having a weak stream but denied frequent urination. Although there is an indication that the Veteran suffered from urinary incontinence sometimes, the evidence does not support a finding that he needed to wear absorbent material and change them more than four times a day due solely to urinary leakage. In fact, he denied wearing a pad in May 2010 and November 2011. While the Veteran testified in January 2017 that he wore absorbent material and changed them more than five times a day, this was due to both bowel and bladder leakage. His private treatment records dated from November 2017 to May 2019 do not show complaints of, treatment for, or the need for absorbent materials due to urinary leakage. It was not until a November 2020 VA examination that the Veteran reported wearing absorbent materials that needed to be changed more than four times per day due solely to urinary incontinence. There is no lay or medical evidence showing that the Veteran has required the use of an appliance. As such, the Board finds that the weight of the evidence in excess of 40 percent prior to November 12, 2020, for urinary leakage; and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Concerning the appellate period from November 12, 2020, forward, the rating criteria contemplating any voiding dysfunction do not provide a rating in excess of 60 percent. 38 C.F.R. § 4.115a. Thus, there is no higher rating available for urinary symptoms under the applicable rating criteria. The only rating criteria related to evaluating prostate cancer residuals under 38 C.F.R. § 4.115b, DC 7528 which could serve as a basis for an increased rating in the current appeal contemplates renal dysfunction. An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80 mg percent, or, creatinine 4 to 8 mg percent, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, and a 100 percent rating is assigned for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or, BUN more than 80 mg percent, or, creatinine more than 8 mg percent, or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R § 4.115a. Here, however, there is no evidence or assertion that the Veteran has renal dysfunction such that an 80 or 100 percent rating would be warranted. 38 C.F.R § 4.115a. As the preponderance of the evidence is against assignment of a rating in excess of 40 percent for the Veteran's service-connected prostate cancer prior to November 12, 2020, and to a rating in excess of 60 percent from November 12, 2020, forward, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for bowel impairment Additional residuals from the Veteran's prostate cancer are rated as 10 percent disabling by analogy to impairment of sphincter control of the rectum and anus pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7332. A 10 percent rating is assigned for constant slight impairment or occasional moderate leakage; a 30 percent rating is assigned for occasional involuntary bowel movements necessitating wearing of a pad; and a 60 percent rating is assigned for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent evaluation is assigned for complete loss of sphincter control. As noted above, in the November 2011 letter, the Veteran stated that he did not wear a pad because he was still working; however, he noted that he wiped his rear end so frequently that it bled. As noted above, at the January 2017 Board hearing, the Veteran testified that he wore absorbent material and changed them more than five times a day due to both bowel and bladder leakage. Private medical records from November 2017 to May 2019 indicate that the Veteran suffered from irritable bowel syndrome with diarrhea and fecal incontinence. In November 2017, the Veteran reported a history of IBS and that he was having some flare up. In May 2019, the provider noted that the Veteran reported three to four bowel movements which was less than before and that he still had fecal leakage which had improved. On examination, there was poor squeeze on rectal examination. The Veteran underwent VA Rectum and Anus conditions in November 2020 at which time he had stomach pain, frequent bowel movements, gas which he passed "all the time," and blood after a bowel movement. However, the examiner did not adequately address the criteria for Diagnostic Code 7332. As such, the Board finds that the Veteran should be provided an additional opportunity to report for a VA examination to ascertain the current severity and manifestations of his current bowel impairment. Specifically, the examiner should indicate any impairment of sphincter control. Entitlement to a TDIU Because a decision on the issue of entitlement to a higher rating for bowel impairment could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Thus, a remand of the TDIU claim is also required. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated treatment records concerning his bowel impairment. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bowel impairment. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bowel impairment, nature and severity of any impairment of sphincter control, and discuss the effect of such bowel impairments alone on any occupational functioning and activities of daily living. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Olson, 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.