Citation Nr: 0005902 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-12 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE What evaluation is warranted for residuals of cancer of the prostate from November 7, 1996. ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from November 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for prostate cancer and assigned a temporary total evaluation of 100 percent, effective November 7, 1996, with an evaluation of 10 percent, effective February 3, 1997. In August 1999, this case was remanded by the Board to the RO in Chicago, Illinois for additional development, to include an examination. That development has been completed and case is ready for final appellate review. FINDING OF FACT Since November 7, 1996, the veteran's service-connected residuals of cancer of the prostate are manifested by awakening to urinate 1 to 2 times per night and 5 to 6 times during the day. CONCLUSION OF LAW An evaluation in excess of 10 percent for residuals of cancer of the prostate from November 7, 1996 is denied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.115a, 4.115b; Diagnostic Codes 7527 and 7528 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that the claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). Service connection is in effect for residuals of prostate cancer, for which the RO has assigned a 10 percent rating in accordance with the provisions of 38 C.F.R. § 4.115a, 4.115b, Diagnostic Codes 7527 and 7528 of the Rating Schedule. The August 1999 Board remand directed that the veteran's service-connected residuals of prostate cancer be examined to determine its current severity. In a letter from the RO to the veteran, dated September 15, 1999, the RO requested that the veteran provide a complete list of dates, names, and addresses of all medical personnel and/or facilities from which he has received treatment for his prostate cancer since July 1996. The veteran did not respond to the letter. Moreover, he failed to appear for a November 1999 VA examination and no explanation has been offered for his failure to report. Hence, the Board will rate the veteran's disability based on the evidence of record. 38 C.F.R. § 3.655(b) (1999). In this case, the RO has assigned the veteran's service- connected residuals of prostate cancer a 10 percent evaluation pursuant to 38 C.F.R. § 4.115b, Diagnostic Codes 7527 and 7528. Pursuant to the provisions of Diagnostic Code 7528, a 100 percent evaluation is warranted when the evidence indicates malignant neoplasm of the genitourinary system. A note to this code states that if there has been no local reoccurrence or metastasis following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, then the disability is to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Review of the medical evidence described above reveals no evidence of reoccurrence or metastasis of the veteran's carcinoma noted in a January 1997 VA examination report. Hence, the veteran's postoperative residuals of his prostate cancer will be evaluated under either voiding dysfunction, renal dysfunction, or urinary tract infection, whichever is predominant, pursuant to Diagnostic Codes 7527 and 7528. Said symptomatology is evaluated pursuant to 38 C.F.R. § 4.115a (ratings of the genitourinary system- dysfunctions). The veteran's residuals of prostate cancer are most appropriately evaluated in terms of voiding dysfunction, as there is no of record 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 a daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night. A 20 percent rating contemplates a daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 10 percent rating contemplates a 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. Reviewing the pertinent evidence of record, the Board concludes that the veteran's residuals of prostate cancer are most appropriately evaluated as 10 percent disabling on the basis of urinary frequency, as defined by 38 C.F.R. § 4.115a. While the veteran indicated during a January 1997 VA examination that he had incontinence which required pads or an appliance, he has failed to submit medical evidence in support of this assertion despite the VA's request for this evidence. Moreover, at the January 1997 examination he reported a daytime urinary frequency of five to six times per day, and a nocturnal urinary frequency of two times per night. This equates to a 10 percent evaluation. 38 C.F.R. § 4.115. Overall, the medical evidence of records reflects that the veteran's residuals of prostate cancer are no more than 10 percent disabling. Hence, his claim for an evaluation in excess of 10 percent for his residuals of prostate cancer is denied. In reaching this decision, the Board notes that the veteran failed to report for a November 1999 VA examination in compliance with the Board's August 1999 directive. While the RO sent letters to the veteran, dated in September and November 1999, and requested that he submit medical evidence indicating increasing disability, the veteran did not respond. In fact, no further correspondence has been received from the veteran. Given the foregoing, then, and so as not to eviscerate the long settled principle that the duty to assist is not "a one-way street", Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the Board declines to remand this aspect of the appeal to facilitate any additional attempt at development. The veteran is, however, invited to submit a new claim at any time with medical evidence showing that his disability has increased in severity so as warrant a higher evaluation than that currently assigned. The rating assigned would then be evaluated based on new evidence submitted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 10 percent from November 7, 1996 for residuals of prostate cancer is denied. DEREK R. BROWN Member, Board of Veterans' Appeals