Citation Nr: 21041641 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-12 085 DATE: July 9, 2021 ORDER Following a temporary 100 percent disability rating for prostate cancer, status post radiation therapy, a 60 percent disability rating, and no higher, effective February 1, 2014 is granted. FINDING OF FACT Prior to his death, the Veteran's residuals of prostate cancer was productive of the wearing of absorbent materials which must be changed more than 4 times a day. However, there was no evidence of renal dysfunction with symptoms of persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSION OF LAW Beginning February 1, 2014 to the time of his death, the Veteran's residuals of prostate cancer warranted a 60 percent disability rating, and no higher. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.97, 4.115b Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1968 to November 1969. The Veteran died in March 2018. Thereafter, the Veteran's widow requested to be substituted as the appellant for purposes of processing claims on appeal at the time of the Veteran's death. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010; see also 79 Fed. Reg. 52977-85 (Sept. 5, 2014). This request for substitution was granted in April 2018. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (VA) in Columbia, South Carolina which, in part, decreased the Veteran's disability rating for prostate cancer from 100 to 20 percent disabling effective February 1, 2014. Notably, in his September 2016 substantive appeal, the Veteran requested a Board hearing. Following his death in March 2018, the Appellant was scheduled for a Board hearing in May 2019 and was provided notice of this scheduled hearing in March 2019; however, in May 2019 correspondence, she withdrew the requested hearing. With regard to the characterization of the issue on appeal, the Board notes that the September 2016 statement of the case characterized the issue as the propriety of the reduction of the Veteran's disability rating for prostate cancer, status post radiation therapy from 100 to 20 percent disabling. However, as evidenced by the Veteran's arguments in his June 2014 notice of disagreement and September 2016 substantive appeal, the Veteran is not disputing the reduction of his disability rating. Significantly, neither the Veteran nor the Appellant have disputed that the Veteran no longer entitled to a 100 percent disability rating for his residuals of prostate cancer beginning February 1, 2014 to the time of his death in March 2018. Instead, in his June 2014 notice of disagreement, the Veteran wrote that he was seeking a disability rating of 60 percent and in his September 2016 substantive appeal, the Veteran wrote that he was seeking a disability rating of 40 percent for his residuals of prostate cancer. As such, the Board has recharacterized this issue as noted on the cover page of the decision. Factual Background By way of history, post-service treatment records show that the Veteran was diagnosed with prostate cancer in September 2011 and underwent radiation therapy in January and February 2012. He submitted an initial claim for service connection for residuals of prostate cancer in January 2012 and, by rating decision dated in February 2012, the RO granted service connection for prostate cancer, status post radiation therapy (based on the Veteran's presumed exposure to herbicides during his Vietnam service), assigning an initial 100 percent disability rating effective January 27, 2012, the date of his claim. Following a periodic February 2013 VA prostate examination, by rating decision dated in February 2013, the RO proposed to decrease the Veteran's disability rating for residuals of prostate cancer from 100 to 20 percent disabling. In March 2013 correspondence, the Veteran sought reconsideration of the proposed reduction, noting that he suffered from significant incontinence due to his prostate cancer residuals. However, by rating decision dated in November 2013, the RO decreased the Veteran's disability rating for prostate cancer from 100 to 20 percent disabling effective February 1, 2014. The Veteran disagreed with this decision and perfected an appeal. Significantly, in his June 2014 notice of disagreement, the Veteran wrote that he was seeking a 60 percent disability rating for his residuals of prostate cancer based on voiding dysfunction. Also, in his September 2016 substantive appeal, the Veteran wrote that he was seeking a 40 percent disability rating for his residuals of prostate cancer as his disability required that he change his absorbent materials 5 to 6 times per day and resulted in him waking up to use the bathroom 5 to 10 times per night. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's residuals of prostate cancer are rated under 38 C.F.R. § 4.115b DC 7528. 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 of the metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular warrants a 100 percent evaluation. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent evaluation. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101 warrants a 60 percent evaluation. Renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101 warrants a 30 percent evaluation. Renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension non-compensable under DC 7101 warrants a noncompensable evaluation. 38 C.F.R. § 4.115a. Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding. Where there is 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 4 times a day, a 60 percent evaluation is warranted. A 40 percent rating is warranted where the disorder requires the wearing of absorbent materials which must be changed 2 to 4 times a day. A 20 percent evaluation is warranted where the disorder requires the wearing of absorbent materials that must be changed less than 2 times per day. Id. For a rating based on urinary frequency, a 40 percent evaluation is warranted when there is a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent evaluation is warranted when there is a daytime voiding interval between one and three hours, or, awakening to void three to four times per night. A 10 percent evaluation is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. For a rating based on obstructed voiding, a 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent evaluation 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 noncompensable evaluation is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. Id. Analysis Evidence relevant to the severity of the Veteran's residuals of prostate cancer prior to his death includes a February 2013 VA prostate examination report. At that time, the examiner noted a previous diagnosis of prostate cancer in 2011. It was noted that the Veteran underwent radiation therapy from January through February 2012 but did not undergo hormonal therapy. The Veteran complained of urinary incontinence with leakage requiring pads intermittently changed at least once per day with nighttime pad usage. The Veteran also complained of erectile dysfunction which began in 2004 with worsening symptoms post treatment. The Veteran reported that he had tried Viagra many years earlier with no improvement of symptoms. He had not tried any medication for his erectile dysfunction since his prostate cancer and was unable to maintain an erection. The examiner noted that the Veteran's prostate cancer was in remission. The Veteran reportedly experienced a voiding dysfunction due to his previous prostate cancer, specifically urine leakage with required absorbent materials which must be changed less than two times per day. The voiding dysfunction did not require the use of an appliance. The voiding dysfunction did not increase urinary frequency and did not cause signs or symptoms of obstructed voiding. There was no history of recurrent symptomatic urinary tract or kidney infections. The examiner noted that the Veteran did experience erectile dysfunction which was aggravated by his prostate cancer. The Veteran was unable to achieve an erection sufficient for penetration and ejaculation. There was no evidence of retrograde ejaculation and the Veteran did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. There were no scars related to the Veteran's prostate cancer and it was noted that the Veteran's prostate specific antigen (PSA) was found to be 0.54. Significantly, the examiner opined that the Veteran's residuals of prostate cancer did not impact his ability to work. Also of record are treatment records dated through October 2015, which, primarily, show treatment for the Veteran's other disorders. As above, in his September 2016 substantive appeal, the Veteran wrote that he was seeking a 40 percent disability rating for his residuals of prostate cancer as his disability required that he change his absorbent materials 5 to 6 times per day and resulted in him waking up to use the bathroom 5 to 10 times per night. Upon review of the evidence above, the Board concludes that following a temporary 100 percent disability rating for prostate cancer, status post radiation therapy, a disability rating of 60 percent, and no higher, for the Veteran's prostate cancer residuals is warranted. As stated above, where there is 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 4 times a day, a 60 percent evaluation is warranted. Significantly, in his September 2016 substantive appeal, the Veteran wrote that his disability required that he change his absorbent materials 5 to 6 times per day. As such, a 60 percent rating is warranted. As for the potential for an even higher rating, the Board finds that the evidence of record does not substantiate a disability rating greater than 60 percent for the Veteran's residuals of prostate cancer prior to his death. As above, an 80 percent disability rating for renal dysfunction is warranted when there is persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Both the February 2013 VA examination report as well as the VA treatment records dated through October 2015 are negative for any indications of renal dysfunction. As such, a 60 percent disability rating, and no higher, for the Veteran's residuals of prostate cancer is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.