Citation Nr: 1761147
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 12-31 824 ) DATE
)
)

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

THE ISSUE

Entitlement to a rating in excess of 40 percent for prostate cancer residuals.

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Elizabeth Jamison, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from October 1966 to November 1968.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which reduced the disability rating for the service-connected prostate cancer to noncompensable (0 percent), effective June 1, 2012. The Veteran filed a Notice of Disagreement (NOD) in April 2012. The RO issued a Statement of the Case (SOC) in November 2012. In November 2012, the Veteran filed his Substantive Appeal. A November 2012 rating decision then increased the disability rating for the prostate cancer to 40 percent, effective June 1, 2012. The Veteran continued to appeal.

In June 2015, the Veteran was afforded his requested Board hearing before the undersigned Veterans Law Judge (VLJ) at the local RO (Travel Board hearing). A copy of the hearing transcript has been associated with the claims file.

This appeal was previously before the Board in January 2016 and August 2017. An October 2017 supplemental SOC continued the 40 percent rating.

The Board acknowledges that rating reduction claims are separate from increased rating claims. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the Agency of Original Jurisdiction addressed the Veteran’s entitlement to an increased rating in the November 2012 Statement of the Case and February 2016 Supplemental Statement of the Case. Additionally, in his November 2012 VA Form 9, the Veteran asserted that he wets his clothes up to 5 times per day/night. During his hearing, he stated that he refused to wear absorbent materials but that he wets his clothes about 5 times during the day and 4 times at night. Therefore, the Board previously found jurisdiction over both the increased rating claim and the propriety of the rating reduction. The August 2017 Board decision upheld the rating reduction as of June 1, 2012. Thus, the remaining issue on appeal addressed herein is the Veteran’s claim for an increased rating in excess of 40 percent for prostate cancer residuals.

This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems.

The Veteran appeared to raise the issue of entitlement to service connection for burns in the groin area secondary to service-connected prostate cancer via the Appellant’s Brief submitted by his representative in November 2017. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. §§ 3.150(a), 3.155(a) (2017). When such a communication is received, VA shall notify the claimant and the claimant’s representative of the information necessary to complete the application form or form prescribed by the Secretary.

Therefore, the November 2017 statement regarding entitlement to service connection for burns in the groin area secondary to service-connected prostate cancer is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2017).

FINDINGS OF FACT

1. A voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is not shown by the evidence of record.

2. The Veteran’s prostate cancer residuals manifest through urinary frequency resulting in daytime voiding intervals of one hour and nighttime awakenings to void up to five times.

CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent from June 1, 2012 have not been met. 38 U.S.C. §§ 1155, 5103, 5013A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.21, 4.115a, 4.115b, Diagnostic Code 7528 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Required notice was provided and neither the Veteran nor his representative have alleged or demonstrated any prejudice with regard to the content or timing of VA’s notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009). The Federal Court of Appeals has held that “absent extraordinary circumstances…it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran….” See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of VA treatment records, VA examination reports, and the Veteran’s statements. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records.

The Board also finds there has been substantial compliance with the August 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Increased Rating

The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

General rating principles

Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R.
§ 4.2, 4.3, 4.7, 4.10.

Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Increased rating for prostate cancer residuals

The Veteran contends that a rating in excess of 40 percent is warranted for his prostate cancer residuals.

The residuals have been rated under Diagnostic Code 7528. 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. 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. In this case, the evidence does not indicate that the Veteran has experienced any significant renal dysfunction. Therefore, the Board determines that his voiding dysfunction is predominant.

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. 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

Urinary frequency is also evaluated under 38 C.F.R. § 4.115a. Urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent disability rating. A daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent disability rating. A daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent disability rating. Id.

Finally, obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent disability rating. 38 C.F.R.
§ 4.115a. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc.; uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every two-to-three months, warrants a 10 percent disability rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year. Id.

Turning to the evidence of record, the Veteran was diagnosed with prostate cancer in October 2004 at the Tulsa VAMC; he underwent radiation treatment at the Shreveport VAMC until March 22, 2005. Antiandrogen therapy was continued until 2006. Thereafter, the medical record does not reflect any local recurrence or metastasis of the prostate cancer prior to the change in evaluation that became effective in June 2012. Multiple PSA tests conducted between September 2005 and August 2014, the results of which ranged from 0.0 to 1.0, showed that the Veteran’s PSA levels were normal and that his prostate cancer had been in remission.

The Veteran underwent VA examination in November 2011. His prostate cancer was described as in remission; radiation treatment was noted. The Veteran reported the following symptoms: back pain, anorexia, dyspnea, fatigue and weakness. He denied fever, nausea, flank pain, chills, vomiting, syncope, lower abdominal pain, angina, lethargy, and edema. In regards to urination, he denied dysuria, hesitancy, difficulty starting a stream, a weak intermittent stream, straining to urinate, hematuria, dribbling, urethral discharge, excessive daytime urination, or excessive nighttime urination. He stated that he did not experience urinary leakage or incontinence. The Veteran stated that he was not currently suffering from residuals of the prostate condition and/or its treatment. The examiner found that the prostate cancer was in remission after reviewing a negative PSA test and examination of the Veteran. The examiner concluded that the Veteran did not have any residual conditions and/or complications due to prostate cancer or treatment for prostate cancer.

In April 2012, the Veteran submitted a Notice of Disagreement in which he wrote that he experienced pain and problems stemming from the cancer treatment. In an August 2012 statement, he wrote that he experienced leakage a minimum of three times per day to include four to five times per night.

The Veteran underwent a second VA examination in October 2012. He reported that his condition had worsened about three weeks after he received radiation; he began to have nausea, constant burning, loss of erection, and was unable to control his bladder. The examiner indicated that the disease was in remission with radiation completed in 2004. A voiding dysfunction was noted which required absorbent material that is changed two to four times per day. Urinary frequency was reported with daytime voiding intervals of less than one hour and more than five nighttime awakenings to void. Hesitancy, slow/weak stream, and decreased flow of stream were also reported. PSA testing returned normal results.

On his November 2012 VA Form 9, the Veteran described constant burning, wetting his clothes, and waking up five times per night.

At the hearing before the Board in June 2015, the Veteran described using the bathroom five times each day and four times each night. He described leakage but denied wearing absorbent materials or pads. He denied any current medication usage for his cancer residuals and reported that his PSA was measured at 5. He also described burning and headaches.

The Veteran underwent a third VA examination in September 2017. The examiner indicated diagnoses of prostate cancer (in remission), urinary frequency, and erectile dysfunction. Current symptoms reported were radiation burns to the groin causing pain, getting up during the night to void, and daytime frequency. Urine leakage was noted; use of an appliance or wearing of absorbent material was denied. Urinary frequency was reported with daytime voiding intervals between two and three hours and nighttime awakenings to void three to four times.
No signs or symptoms of obstructed voiding were present. The examiner confirmed that the urinary frequency is a progression of the Veteran’s service-connected prostate cancer.

After thorough review of the lay and medical evidence of record, the Board finds that a rating in excess of 40 percent is not warranted.

The Veteran’s cancer has been successfully treated with no recurrence or metastasis. Thus, the condition is rated according to residuals (voiding dysfunction or renal dysfunction) as governed by Diagnostic Code 7528. His residual symptoms of prostate cancer are predominantly manifested by voiding dysfunction, including urinary leakage and frequency. During the appeal period, the Veteran reported at worst leakage requiring absorbent material that is changed two to four times per day with daytime voiding intervals of less than one hour and more than five nighttime awakenings to void. Under Diagnostic Code 7548, a 40 percent evaluation, but no higher, is warranted for these symptoms.

As previously noted, the evidence is silent for renal dysfunction. Obstructed voiding and urinary tract infections are not present. A 40 percent evaluation is the highest available for urinary frequency. Thus, application of these criteria is not beneficial for the Veteran in this case.

A higher 60 percent rating for voiding dysfunction is warranted for continual urine leakage or urinary incontinence requiring the use of an appliance or wearing absorbent materials which must be changed more than four times per day. The evidence does not persuasively support a finding that the Veteran requires the use of an appliance or absorbent materials. Indeed, he denied such during the November 2011 and September 2017 VA examinations and at the June 2015 hearing before the Board.

Accordingly, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal. The VA examinations, as well as the VA treatment records, do not document any complaints of continual urine leakage or urinary incontinence requiring the use of an appliance or wearing absorbent materials which must be changed more than four times per day, as required for a 60 percent rating based on voiding dysfunction.

During the hearing before the Board, it was argued that his PSA levels were currently at 5.0. However, this is inconsistent with the contemporaneous VA medical records which show levels ranging from 0.10 to 0.17. See Tulsa VAMC Outpatient Treatment Records, dated from 2010 to 2015. The Board recognizes that the Veteran is competent to provide evidence about his disability; for example, he is competent to describe experiencing pain, leakage, urinary frequency, and other symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, neither the Veteran nor his representative possesses the medical training and expertise to provide a complex medical opinion as to a particular cancer. See id.; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent evidence concerning the nature and extent of the Veteran’s disability was provided by the VA examiners who have interviewed and evaluated him during the current appeal. The medical findings as provided in the various VA examination reports directly address the criteria under which this disability is evaluated. Thus, the lay evidence is outweighed by the competent medical evidence that evaluates the true extent of his disability. The Board finds that the preponderance of the evidence reflects a severity compensated by a 40 percent evaluation for residuals of the disease.

Taking into account the competent and probative evidence of record, the Board finds that the collective medical and lay evidence does not persuasively indicate that the Veteran’s prostate cancer residuals meet the criteria for an evaluation in excess of 40 percent. Accordingly, after thorough review of the record, the Board finds that a rating in excess of 40 percent for prostate cancer residuals is not warranted; the Veteran’s claim for an increased rating is denied. In denying a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, there is no reasonable doubt to be resolved with respect to this issue. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Other Considerations

The Board has considered other potentially applicable Diagnostic Codes relating to the genitourinary system. The record does not demonstrate evidence of bladder fistula (Diagnostic Code 7516) or kidney transplant (Diagnostic Code 7531), which would afford ratings in excess of 40 percent. Application of these criteria is not appropriate, either directly or by analogy. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (Where a condition is listed in the schedule, rating by analogy is not appropriate. “An analogous rating . . . may be assigned only where the service-connected condition is ‘unlisted.’)

In reaching the above conclusion, the Board also has considered whether the Veteran is entitled to an increased level of compensation for his prostate cancer disability on an extraschedular basis. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether a veteran’s disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, a veteran’s disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second inquiry, that is whether a veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, a veteran’s disability picture requires the assignment of an extraschedular rating.

With respect to the Thun factors, the Veteran alleged symptoms including headaches and erectile dysfunction, as well as burns due to radiation treatment. The Board notes that a separate rating is in effect for erectile dysfunction and a claim for service connection for burns due to radiation treatment was referred above to the RO for appropriate action. While the Veteran complains of headaches, no VA examiner has attributed headaches as a residual of the Veteran’s prostate cancer. The Veteran appears to be merely observing a temporal proximity. Temporal proximity is generally not a reliable indicator of a causal relationship. See, e.g., Black v. Food Lion, Inc., 171 F.3d 308, 313 (5th Cir.1999) (holding that using temporal proximity to establish causation “is not an exercise in scientific logic but in the fallacy of post-hoc propter-hoc reasoning, which is as unacceptable in science as in law”). Moreover, there is no evidence that his symptoms have caused hospitalization or substantially interfered with his ability to obtain or maintain employment. Rather, the evidence indicates that his condition is in remission. At the June 2015 Board hearing, the Veteran denied current medication for his prostate cancer or residuals. Most recently, the September 2017 VA examiner found that treatment was completed and the Veteran was currently in watchful waiting status with no effect on his ability to work. In sum, the record does not reflect marked interference with employment or hospitalization due to the condition on appeal. Accordingly, the requisite factors under Thun are not present, and referral of the prostate cancer disability for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted in this case.

The Veteran has not raised any other issues with respect to the increased rating claim for prostate cancer residuals, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to a rating in excess of 40 percent for prostate cancer residuals is denied.

____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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