Citation Nr: 0005127 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-20 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation greater than 10 percent for the residuals of prostatectomy for prostrate cancer. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Rogers, Associate Counsel INTRODUCTION The veteran had active duty in the Air Force from November 1963 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) from a December 1996 rating decision of the Department of Veterans Affairs (VA) Denver, Colorado Regional Office (RO). In that decision the RO granted service connection and a noncompensable evaluation for residuals of prostatectomy for prostrate cancer from November 1996. The veteran perfected an appeal of the December 1996 decision. The Board notes that in an April 1997 rating action, the RO increased the disability evaluation of the veteran's residuals of prostatectomy for prostrate cancer from a zero percent rating to a 10 percent rating from November 1996. In the April 1997 rating action, the RO, inter alia, granted special monthly compensation (SMC) based on loss of use of a creative organ, under the provisions of 38 C.F.R. § 3.350 and 38 U.S.C.A. § 1114(k), effective from November 1996. A June 1997 substantive appeal was construed as a notice of disagreement with the rate of SMC. A supplemental statement of the case addressing SMC was issued in September 1999. There has been no substantive appeal issued subsequent to September regarding SMC submitted by the veteran and the Board has no jurisdiction of the matter. See 38 C.F.R. § 20.200 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected residuals of prostatectomy for prostate cancer are manifested by urinary frequency, consisting of urinating every 2 to 3 hours during the day and every five hours during the night. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of prostatectomy for prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.115a, Diagnostic Code 7527 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records are negative for complaints, findings, diagnosis or treatment for the residuals of prostate cancer. A February 1994 private medical report noted findings from a transrectal ultrasound of the prostate which showed a hypoechoic area in the right apex. The report further indicated that prostate-specific antigen density (PSA) was .17. According to the report, multiple transverse and longitudinal images were made of the prostate and seminal vesicles. It was noted that the seminal vesicles looked pretty normal and the left one was bigger than the right. The ejaculatory ducts were normal and the median lobe was unremarkable. The prostate itself was pretty homogenous, except for a slightly hypoechoic area in the right apex. There were a couple of small calculi that cast shadows. An April 1994 bone scan impression was negative for definite metastatic disease, one right supraorbital area of uptake. An April 1994 private medical report showed that the veteran underwent a radical retropubic prostatectomy with bilateral pelvic lymph node dissection. Before surgery, a transrectal ultrasound of the prostrate showed a hypoechoic area in the right apex and biopsy showed well to moderately differentiated adenocarcinoma, Gleason's score 5, in the right lobe biopsies. Impression was clinical stage B1 moderately well differentiated prostate cancer. The veteran's postoperative course was uncomplicated and his pathology report showed two foci of moderately differentiated adenocarcinoma of the prostate with nodes and margins and seminal vesicles negative. In June 1994 a private physician stated that the veteran underwent a radical retropubic prostatectomy with bilateral pelvic lymph node dissection for pathologic stage B-1, Gleason grade III adenocarcinoma of the prostate with negative nodes and negative margins. According to the private physician, the veteran's prognosis was excellent and his surgical recovery was uncomplicated. In a January 1997 letter a private physician stated that although the veteran is not totally impotent, he is less potent than he was before his radical prostatectomy. He further stated that the veteran's diminished potency was caused by his radical prostate cancer surgery. A February 1997 VA examination revealed that the veteran has good urine control, but he is totally impotent. A rectal examination showed that the prostate capsule was missing, the examination was negative for occult blood and the external genitalia appeared to be normal. Diagnosis was status post radical retropubic prostatectomy for adenocarcinoma, with total impotency. An April 1997 addendum to the February 1997 VA examination indicated that because of the retropubic prostatectomy the veteran has increased urinary frequency without incontinence. The veteran urinates every two to three hours during the day and at night he urinates about every five hours. The veteran does not wear diapers or pads. During an April 1999 personal hearing the veteran stated that approximately five years ago he had an irradical prostatectomy and now he is impotent. He also explained that he currently does not have any incontinence problems, during the day his urine frequency is normal, and he usually awakens once at night to go to the restroom. The veteran also stated that if his bladder is full and he laughs or coughs dribbling does occur. He further stated that he does not wear a pad and during an emergency he does not have flares or exacerbations. He did, however, state that his urine stream flares out. According to the veteran, he does not take any medications, his PSA has been normal and there has been no recurrence of the prostate tumor. II. Laws and Regulations The veteran's increased rating claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the veteran's contention regarding the increased severity of his service- connected residuals of a prostatectomy for prostate cancer. See Jones v. Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability ratings are based on the average impairment of earning capacity resulting from disability. The percentage ratings for each diagnostic code, as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R Part 4, represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Under 38 C.F.R. § 4115(b), ratings of the genitourinary system, Diagnostic Code 7527 provides that prostate gland injuries, infections, hypertrophy, and post-operative residuals be rated under the category of voiding dysfunction or urinary tract infection, whichever is dominant. Voiding dysfunction provides that the particular disability may be evaluated as urine leakage, frequency, or obstructed voiding. The veteran's residuals of prostate cancer are most appropriately evaluated in terms of voiding dysfunction, as there are no complaints or medical evidence of either renal dysfunction or urinary tract infection. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Urine leakage involves ratings ranging from 20 to 60 percent. A 60 percent rating contemplates 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 per day. A 40 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night. A 20 percent rating contemplates daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 10 percent rating contemplates daytime voiding interval between 2 and 3 hours, or awakening to void 2 times per night. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates 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 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. III. Analysis The Board has reviewed the evidence of record and finds that a 20 percent disability rating for the veteran's service- connected residuals of prostatectomy for prostate cancer is not warranted. The results of a February 1997 VA examination showed that the veteran has good urine control, although he is totally impotent. An April 1997 addendum noted that after the prostatectomy, the veteran had increased urinary frequency without incontinence. It was also noted that the veteran has to urinate every two to three hours during the day and about every five hours during the night. According to the report, the veteran does not wear diapers or pads. In accordance with Diagnostic Code 7527 for urinary leakage, a 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day and for urinary frequency, a 20 percent rating contemplates daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. For obstructed voiding a 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. The evidence shows that the veteran does not wear diapers or pads, he urinates every two to three hours during the day and every five hours during the night. The veteran even stated during an April 1999 personal hearing that his urinary frequency is normal during the day and his urine frequency is once at night. Based on the above evidence, the Board finds, therefore, that the application of the provisions of Diagnostic Code 7257 does not result in a higher disability rating. In denying the veteran's claim, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to an evaluation greater than 10 percent for the residuals of prostatectomy for prostrate cancer with special monthly compensation for loss of use of a creative organ is denied. REMAND The April 1997 rating action also granted service connection for impotence and assigned a noncompensable rating. The June 1997 substantive appeal could be fairly construed as a notice of disagreement with the evaluation. Since the appellant filed a timely notice of disagreement with respect to the evaluation, the Board's jurisdiction has been triggered. At this point, the issue must be REMANDED, per Manlincon v. West, 12 Vet. App. 238 (1999), so that the RO can issue a statement of the case on the underlying claim itself: entitlement to compensable rating for impotency. In light of the foregoing, the case is REMANDED to the RO for the following development: The RO should readjudicate the issue of entitlement to compensable rating for impotency. If the claim remains denied, the RO is directed to promulgate a statement of the case on this issue and to provide the appellant with the appropriate notice of appellate rights. If the claim is not resolved to the appellant's satisfaction, he should be provided with a statement of the case and an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board, if a timely substantive appeal is submitted. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. _____________________________________ THOMAS J. DANNAHER Member, Board of Veterans' Appeals