Citation Nr: 1736650	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-23 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an increased rating greater than 10 percent for the residuals of prostate cancer, to include voiding dysfunction.

2.  Entitlement to an initial rating greater than 0 percent for erectile dysfunction, as secondary to the service-connected disability of residuals of prostate cancer.

3.  Entitlement to service connection for loss of sphincter control, as secondary to the service-connected disability of residuals of prostate cancer.


REPRESENTATION

Veteran represented by:	Robert Brown, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Bristow Williams, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1967 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and December 2013 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) in Muskogee, Oklahoma.

The December 2013 rating decision granted service connection for erectile dysfunction with a 10 percent rating effective July 9, 2013.

In August 2014, the Veteran testified during a hearing before the undersigned that was conducted by videoconference.

This matter was previously before the Board in February 2015, at which time it was remanded for further development.  

Entitlement to a rating in excess of 10 percent for residuals of prostate cancer, to include voiding dysfunction, was specifically denied by the RO.  The record shows, however, that the Veteran claims that he suffers from erectile dysfunction and periodic loss of sphincter control as residuals of the prostate cancer. Additionally, in its previous remand, the Board considered erectile dysfunction and periodic loss of sphincter control as part of the claim for an increased rating for residuals of prostate cancer.  Thus, the claim on appeal includes the Veteran's claims for additional ratings prostate cancer residuals based on erectile dysfunction and periodic loss of sphincter control.  Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009).


FINDINGS OF FACT

1.  There has been no recurrence or metastasis of the Veteran's prostate cancer.

2.  During the entire appellate period, the service-connected residuals of prostate cancer have been manifested by nighttime voiding of two times per night and daytime voiding interval of two to three hours.

3.  During the entire appellate period, the prostate cancer residuals have not been manifested by urinary incontinence requiring the use of absorbent materials or the use of an appliance; or by any renal dysfunction.

4.  During the entire appeal period, the Veteran's service-connected erectile dysfunction has more closely approximates penile deformity with loss of erectile power.

5.  The Veteran has occasional moderate leakage as a residual of prostate cancer, but not total loss of sphincter control.


CONCLUSIONS OF LAW

1.  A disability evaluation in excess of 10 percent is not warranted for the service-connected residuals of prostate cancer at any time during the appellate period.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2016).

2.  The criteria for entitlement to a 20 percent rating for erectile dysfunction have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.31, 4.115b, Diagnostic Code 7522 (2016).

3.  The criteria for entitlement to a 10 percent rating for loss of sphincter control as a residual of prostate cancer have been met.  38 U.S.C.A. § 1110, 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7332 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Veteran and his attorney have not alleged that VA failed to fulfill its duty notify or assist in the development of his claim.  Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions, and he will not be prejudiced as a result of the Board proceeding to the merits of his claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Applicable Laws and Regulation

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).


Service Connection

A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by a disease or injury in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

A service connection claim must be accompanied by evidence that establishes that the claimant currently has the claimed disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997).  The court has also held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McClain v. Nicholson, 21 Vet. App. 319 (2007).


Ratings

Disability ratings are determined by applying the criteria in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20.  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  

Furthermore, when it is not possible to separate the effects of the service-connected disability from a non-service-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Veteran's entire history is to be considered when making a disability determination.  38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

III. Analysis

Residuals of Prostate Cancer

Prostate cancer is rated under the Diagnostic Code 7528, which provides that a 100 percent evaluation is assigned for the malignant neoplasms of the genitourinary system.  Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent is continued with a mandatory VA examination at the expiration of six months.  If there has been no local reoccurrence or metastasis, the disability is to be rated as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b, Diagnostic Code 7528.

The medical evidence of record demonstrates that the Veteran's prostate cancer was successfully treated and that surgical, X-ray, antineoplastic chemotherapy, and other therapeutic procedures ceased more than 6 months prior to the July 2013VA medical examination. In fact, there is no evidence of any further radiation therapy or other treatment for the Veteran's prostate cancer beyond the initial treatment in 2011. The medical evidence of record does not show that there was a local reoccurrence or metastasis of the Veteran's prostate cancer.  Thus, a 100 percent rating is not warranted under Diagnostic Code 7528, and the disability is rated on its residuals. 

Since May 1, 2013, the residuals of the Veteran's prostate cancer have been rated as voiding dysfunction.  See 38 C.F.R. § 4.115a.  

Voiding dysfunction is to be rated on the basis of urine leakage, frequency, or obstructed voiding.  Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence that requires the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent evaluation.  A disability that requires the wearing of absorbent materials which must be changed two to four times per day warrants a 40 percent evaluation.  A disability that requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating.  38 C.F.R. § 4.115a.  There are no criteria for a rating higher than 60 percent.

Urinary frequency with a daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating.  Urinary frequency with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating.  Urinary frequency with a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating.  38 C.F.R. § 4.115a.  There are no criteria for a rating higher than 40 percent.

Obstructed voiding involving symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a noncompensable evaluation.  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; and (4) stricture disease requiring periodic dilatation every two to three months requires a 10 percent evaluation.  A 30 percent evaluation is warranted when there is urinary retention requiring intermittent or continuous catheterization.  38 C.F.R. § 4.115a.  There are no criteria for a rating higher than 30 percent.

The record shows that the Veteran has signs or symptoms of urinary frequency.  In July 2013, the Veteran underwent a VA prostate cancer examination.  He reported that his nighttime urinary frequency was twice per night.  The Veteran reported urine leakage; however, it did not require use of absorbent material.  While the examiner indicated the Veteran showed signs of obstructed voiding, to include a markedly slow or weak stream and decreased force of stream, the Veteran exhibited no other signs or symptoms of voiding dysfunction.  The examiner noted that the Veteran did not have a history of urinary tract infections.

In July 2014, the Veteran underwent a private medical examination.  The examiner indicated that due to the Veteran's prostate cancer, he had difficulty starting a stream and voiding, difficulty keeping urine in the bladder, and dribbling on himself.  While the examiner reviewed the Veteran's entire medical record and performed an in-person examination, he failed to provide more specific indications of the Veteran's urinary frequency and obstructed voiding.

The Veteran underwent another VA examination in March 2015.  He reported that his nighttime urinary frequency was twice per night and a daytime voiding interval between 2 and 3 hours.  The examiner noted the Veteran had a slow and weak stream and decreased force of stream.  The examiner noted that the Veteran was currently being treated for a kidney infection; however, he noted that the Veteran did not have recurrent urinary tract infections secondary to obstruction.

Each of these examiners reviewed the records, conducted an in-person examination and rendered opinions supported by adequate rational.  The Board finds that all of the examinations are adequate for rating purposes.  

Based upon review of the records, the Board finds that the Veteran's residuals of prostate cancer manifest as voiding dysfunction, primarily as voiding frequency that does not exceed a daytime voiding interval of two to three hours or nighttime awakening to void more than two times.

Residuals of prostate cancer may also be rated as renal dysfunction.  See 38 C.F.R. § 4.115b, Diagnostic Code 7528.  Renal dysfunction manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101, is to be assigned a 60 percent rating.  Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating.  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 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating.  38 C.F.R. § 4.115a.

However, the evidence of record does not reveal any diagnosis of renal dysfunction or findings of renal dysfunction.  There is no evidence that the Veteran was found to have any albuminuria, any edema or any decrease in kidney function. There is no clinical evidence of record that the Veteran has hypertension with diastolic pressure predominantly 120 or more or that he has ever had BUN levels 40 to 80mg% or creatinine levels of 4 to 8mg%.  In addition, there is no clinical evidence of record that he has generalized poor health due to his prostate cancer residuals.  

In light of the evidence of record and the above legal criteria, the Board finds that the Veteran is not entitled to a rating in excess of a 10 percent, because the evidence does not demonstrate that the Veteran experiences such symptoms as voiding dysfunction requiring the use of absorbent materials, urinary frequency exceeding two times per night or a daytime voiding interval greater than two to three hours, or that he experiences any renal dysfunction at all.  The preponderance of the evidence is against the claim for a schedular rating in excess of 10 percent for the prostate cancer residuals.

Erectile Dysfunction

In its December 2013 rating decision, the RO granted service connection for erectile dysfunction with a noncompensible rating effective July 9, 2013.  The RO also granted special monthly compensation for loss of use of a creative organ.  

Under Diagnostic Code 7522, in order to receive a compensable rating of 20 percent for erectile dysfunction, physical deformity of the penis with loss of erectile power is required.  38 C.F.R. § 4.115b.  There are no criteria for a rating higher than 20 percent.

During the July 2013 VA examination, the examiner noted that the Veteran's genital examination findings were normal.  In March 2014, a private examiner concluded that radiation therapy utilized to treat the Veteran's prostate cancer had caused scarring and anatomical changes to the penis that resulted in the loss of penile erection.  However, during the March 2015, VA examination, the examiner noted the Veteran's penis was "normal." 

The March 2014 private examination to be most probative as the examiner provided more specific findings and a rationale for his conclusions.  The Board finds the evidence in equipoise; when the evidence is in equipoise, the Veteran prevails on the claim.  Thus, a 20 percent rating for erectile dysfunction is warranted based on the findings of anatomical changes with loss of erectile function.  

Loss of Sphincter Control

The Veteran has a current diagnosis of periodic loss of sphincter control, which he attributes to his service-connected residuals of prostate cancer.  See March 2014 private examination and March 2015 VA examination.  

The March 2014 private examiner noted that the Veteran had loss of anal sphincter control with difficulty starting to defecate and then loss of and oozing of stool during the day.  The examiner opined that the loss of sphincter control was caused by scarring and anatomical changes of the Veteran's rectum due to radiation therapy used to treat his prostate cancer.

Additionally, the March 2015 VA examiner noted that the Veteran had "some" sphincter control after being treated with radiation for prostate cancer; however a stroke caused the Veteran to lose control of sphincter to a greater extent.  

Therefore, the Veteran is entitled to a separate rating for loss of sphincter control, as a residual of prostate cancer.  The March 2014 private medical opinion provides the nexus between the current disability and the service-connected disability.  Specifically, radiation treatment that was used to treat the Veteran's service-connected prostate cancer resulted in scarring and anatomical changes of the Veteran's rectum causing loss of anal sphincter control.

Impairment of sphincter control in the rectum and anus is rated under 38 C.F.R. § 4.114, Diagnostic Code 7332.  Healed or slight impairment, without leakage, warrants a noncompensable rating.  Constant slight impairment, or occasional moderate leakage, warrants a 10 percent rating.  Occasional involuntary bowel movements necessitating the wearing of a pad warrants a 30 percent rating.  Extensive leakage and fairly frequent involuntary bowel movements warrants a 60 percent rating.  Complete loss of sphincter control warrants a 100 percent rating.  38 C.F.R. § 4.114, Diagnostic Code 7332.

In March 2014, the private medical examiner noted that the Veteran had loss and oozing of stool during the day.  Additionally, in March 2015, a VA examiner noted that the Veteran had "some" sphincter control.  The record does not reflect that the Veteran must wear a pad due to occasional involuntary bowel movements.  Therefore, an initial rating of 10 percent, but no greater, is warranted for constant slight impairment, or occasional moderate leakage.  


ORDER

A rating greater than 10 percent for the residuals of prostate cancer, to include voiding dysfunction, is denied.

An initial rating of 20 percent for erectile dysfunction, as secondary to the service-connected disability of prostate cancer, is granted.

A separate rating of 10 percent for loss of sphincter control, as secondary to the service-connected disability of prostate cancer, is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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