Citation Nr: 1736636	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-14 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an increased rating for urinary incontinence, status post adenocarcinoma of the prostate, currently evaluated as 40 percent disabling effective August 25, 2010. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Daugherty, Associate Counsel





INTRODUCTION

The Veteran served in the United States Army with active duty from July 1965 to January 1972 and from February 1978 to April 1984, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which assigned an evaluation of 40 percent for urinary incontinence status post adenocarcinoma of the prostate, effective August 25, 2010. 

This claim was previously before the Board in November 2015, at which time it was remanded for further development.  The claim has now returned to the Board for further appellate action.

The Board notes that in their November 2015 remand, the RO was directed to issue a Statement of the Case with respect to the issue of whether a March 2009 reduction from a 100 percent disability rating to a 0 percent disability rating for adenocarcinoma of the prostate was proper.  Pursuant to the Board's remand directives, a Statement of the Case on that issue was furnished to the Veteran in April 2017.  Stegall v. West, 11 Vet. App. 268 (1998).  However, the Veteran did not perfect the appeal and therefore, this issue is no longer before the Board for consideration.


FINDING OF FACT

The most probative evidence of record shows that the Veteran's urinary incontinence, status post adenocarcinoma of the prostate, is manifested by voiding dysfunction that requires absorbent material that must be changed less than two times per day. 


CONCLUSION OF LAW

The criteria for an evaluation in excess of 40 percent for urinary incontinence, status post adenocarcinoma of the prostate, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2016). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist 

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126  (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A.

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  38 U.S.C. § 5103(a).  

Here, a letter sent to the Veteran in December 2016, satisfied the VCAA notice requirement for his increased rating claim as they provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the April 2017 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  As such, no further discussion of VA's duty to notify is necessary.

VA also has a duty to assist the Veteran in the development of his claims.  This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained.  The Veteran's service treatment records and post-service VA treatment records have been obtained.  He has not indicated that there are any additional records that VA should seek to obtain on his behalf.   

The Veteran was most recently provided an examination in these matters in January 2017, pursuant to the Board's November 2015 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination.  Barr v. Nicholson, 21 Vet. App. 303 (2007). 

As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims.

II.  Increased Ratings

The Veteran and his representative assert that his urinary incontinence, status post adenocarcinoma of the prostate, meets the criteria for an initial rating in excess of 40 percent.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016).  The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  See 38 C.F.R. § 4.1.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Under Diagnostic Code 7528, a 100 percent rating may be assigned for malignant neoplasms of the genitourinary system.  Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating 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) (2016) of this chapter.  If there has been no local reoccurrence or metastasis, the disorder should be rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115(b), Diagnostic Code 7528. 

Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen (BUN) more than 80mg% (milligrams per 100 milliliters); or, creatine more than 8%mg; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent disability rating.  38 C.F.R. § 4.115a. 

Renal dysfunction characterized by persistent edema and alumbinuria with BUN 40 to 80mg%; or creatine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion warrants an 80 percent disability rating.  Id. 

Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent disability rating.  Id.

Renal dysfunction where albumin is 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 Diagnostic Code 7101 warrants a 30 percent disability rating.  Id. 

Renal dysfunction with albumin and casts with history of acute nephritis; or hypertension that is noncompensable under Diagnostic Code 7101 is rated as noncompensable.  Id. 

Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding.  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 four times per day warrants a 60 percent disability rating.  38 C.F.R. § 4.115a. 

Where such requires the wearing of absorbent materials which must be changed two-to-four times per day, a 40 percent disability rating is warranted.  Id.  Where such requires the wearing of absorbent materials which must be changed less than two times per day, a 20 percent disability rating is warranted.  Id. 

The Veteran was first afforded a VA examination in connection with his claim for urinary incontinence, status post adenocarcinoma of the prostate, in August 2010.  During that examination, the Veteran reported the urinated five times during the day at intervals of four and during the night, he urinated two times at intervals of four.  He noted problems starting urination and that the urine flow was weak, hesitant and without force.  Additionally, he noted that his urinary incontinence required absorbent material that needed to be changed as often as four times per day.  See, August 2010 VA examination. 

Following the August 2010 VA examination, the RO awarded the Veteran a 40 percent rating disability based on the symptomatology as described above.  See, May 2011 rating decision.  The Veteran appealed the decision, indicating that he believed that he was entitled to a rating in excess of 40 percent for urinary incontinence status post prostate cancer.  See, May 2011 VA Form 9. 

The Veteran was most recently provided with a VA examination in January 2017.  During this examination, the Veteran reported his voiding dysfunction resulted in urine leakage that required the use of absorbent material that must be changed less than two times per day.  At this examination, the VA examiner also indicated that the Veteran did have renal dysfunction, but that no current symptoms were reported.  Accordingly, in this case, the Veteran's voiding dysfunction is shown to be his predominant residual of prostate cancer. 

In considering all evidence of record as set forth above, the Board concludes that preponderance of the evidence is against a finding that the Veteran is entitled to an initial rating in excess of 40 percent for service-connected urinary incontinence, status post adenocarcinoma of the prostate.  The evidence of record shows that the Veteran's urinary incontinence, status post adenocarcinoma of the prostate, is manifested by daytime voiding interval between two and three hours, nighttime awakening to void three to four times, and the required use of absorbent material that must be changed less than two times per day.  There is no indication that the Veteran experienced leakage requiring the use of an appliance or the changing of absorbent materials more than four times per day.  Accordingly, a rating in excess of 40 percent is not warranted. 


ORDER

A rating in excess of 40 percent for service connected urinary incontinence, status post adenocarcinoma of the prostate, is denied.




____________________________________________
Steven D. Reiss
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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