Citation Nr: A25035446 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240717-455754 DATE: April 17, 2025 ORDER Entitlement to an increased disability evaluation for prostate cancer, currently rated as noncompensable, is denied. FINDING OF FACT The Veteran's prostate cancer is in remission with no residual voiding dysfunction or renal dysfunction. CONCLUSION OF LAW The criteria for an increased, compensable disability evaluation for prostate cancer have not been met. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1974 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies. In an August 12, 2023 rating decision, the AOJ awarded the Veteran service connection for prostate cancer, and assigned a noncompensable disability evaluation, effective August 10, 2022. The Veteran was notified of this decision on August 15, 2023. The Veteran, on August 23, 2023, filed a VA Form 20-0996, Decision Review Request: Higher Level Review, requesting review of the August 2023 rating decision as to the disability evaluation assigned for the Veteran's service-connected prostate cancer. A Higher-Level Review rating decision was issued on December 21, 2023, which found that there was a duty to assist error in the August 2023 rating decision; the Veteran was notified that additional development, namely a VA examination, was required. In a June 3, 2024 rating decision, the AOJ reviewed the evidence of record at the time of the prior rating decision and the results of a January 2024 VA examination, and denied the Veteran's claim for an increased, compensable disability evaluation for the Veteran's service-connected prostate cancer. The Veteran was notified of this rating decision on June 4, 2024. The Veteran appealed the June 2024 rating decision to the Board by filing a July 17, 2024 VA Form 10182, Decision Review Request: Board Appeal. The Veteran requested Direct Review. On July 25, 2024, the Board acknowledged receipt of the Veteran's Board Appeal request (VA Form 10182). Accordingly, under its review, the Board will now only consider all evidence of record at the time of the June 4, 2024 notice of the rating decision on appeal. 38 C.F.R. § 20.301. The Board interprets the Veteran's selection of the Direct Review option with an indication of a decision being rendered within 365 days as well as statements of record as reflecting an intent to have this matter reviewed in an expeditious manner. Thus, the Board finds that the Veteran does not wish to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024). The Board will proceed to adjudicate the Veteran's claim. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for prostate cancer, currently rated as noncompensable. The Veteran is currently assigned a noncompensable (0 percent) disability evaluation for his prostate cancer pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528 provides that a 100 percent rating will be in effect for six months following cessation of treatment for the cancer, with a mandatory VA examination at the expiration of the six months. If there has been no local reoccurrence of metastasis, the residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. VA regulations provide that voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding as set forth in 38 C.F.R. § 4.115a. Renal dysfunction involves manifestations of symptoms such as albuminuria and definite decrease in kidney function as set forth in 38 C.F.R. § 4.115a. For voiding dysfunction manifested as urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating (the maximum schedular rating for urinary frequency) is warranted for daytime voiding interval less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For voiding dysfunction manifested as urinary leakage, a 20 percent rating is warranted when wearing of absorbent materials which must be changed less than 2 times per day is required. A 40 percent rating is warranted for when absorbent materials must be changed 2 to 4 times per day. A 60 percent rating (the maximum schedular rating for voiding dysfunction) is warranted when use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is required. Id. For voiding dysfunction manifested as obstructed voiding, a 30 percent rating is warranted where there is urinary retention requiring intermittent or continuous catheterization. The record reflects that the Veteran underwent a prostatectomy for treatment of his service-connected prostate cancer in August 2012. As previously discussed, the Veteran was granted service connection for his prostate cancer many years later, in an August 2023 rating decision due to a change in the law. See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). In the August 2023 rating decision, the Veteran was granted a noncompensable rating for his prostate cancer, effective August 10, 2022, which was of the date of enactment of the PACT Act. Therefore, the relevant period for appellate consideration is from August 10, 2022, the effective date of the grant of service connection for prostate cancer. A January 2024 VA genitourinary examination report and VA treatment records reflect that the Veteran's prostate cancer is in remission following a prostatectomy in August 2012. Accordingly, a 100 percent rating, temporary or otherwise, may not be assigned because pursuant to Diagnostic Code 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Therefore, the focus here is on the nature and severity of any and all residuals. In this case, the record does not contain competent medical or lay evidence of voiding dysfunction or renal dysfunction. In this regard, the Board notes that VA treatment records dated March 2006 through July 2023 indicate that the Veteran reported a history of "some leakage" following his prostatectomy. See May 20, 2022 VA treatment records. However, VA treatment records also indicate that he denied dysuria, hematuria, urgency, or frequency; there were no reports of hesitancy, difficulty with urination, or incontinence. At the January 2024 VA examination, the VA examiner noted that there was no evidence of renal dysfunction and that the Veteran denied experiencing voiding dysfunction. Additionally, the Board observes that there is no evidence of local reoccurrence or metastasis. In accordance with Bailey v. Wilkie, 33 Vet. App. 188 (2021), in which the United States Court of Appeals for Veterans Claims (CAVC) held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability", the Board has considered whether the Veteran is entitled to a separate disability evaluation for erectile dysfunction as secondary to the Veteran's prostate cancer. However, the Board observes that the Veteran was initially diagnosed with erectile dysfunction in April 2006, prior to the diagnosis of and treatment for prostate cancer in August 2012. See VA treatment records dated April 7, 2006. As such, the Board finds that the Veteran's erectile dysfunction is not causally related to his prostate cancer, and a separate evaluation is not warranted. As such, the Board finds that the Veteran is not entitled to a compensable disability evaluation for his service-connected prostate cancer. The Veteran's claim for an increased disability evaluation is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.