Citation Nr: 0004251 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-02 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the assignment of a 40 percent disability rating for the residuals of a radical cystoprostatectomy and ileal neobladder, secondary to transitional cell carcinoma of the bladder, was appropriate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from July 1953 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A personal hearing scheduled for the veteran was canceled at his request. The Board notes that the veteran reportedly verbally informed his service organization representative, in approximately January 1999, that he wished to withdraw this appeal. However, he did not submit a written statement to that effect. Thus, this matter is now ready for appellate review. FINDINGS OF FACT 1. Sufficient evidence is contained in the claims file to render an equitable decision on this appeal. 2. Since December 1, 1997, the veteran's residuals of a radical cystoprostatectomy and ileal neobladder, secondary to transitional cell carcinoma of the bladder, have been primarily manifested by controlled voiding every two hours during the daytime without use of absorbent materials, and by the use of an absorbent pad at nighttime. CONCLUSION OF LAW The criteria for a rating greater than 40 percent for the residuals of a radical cystoprostatectomy and ileal neobladder, secondary to transitional cell carcinoma of the bladder for the period commencing December 1, 1997 have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20, 4.115a, 4.115b, Diagnostic Codes 7517 and 7528 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable Laws and Regulations Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107. When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well-grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet.App. 218, 224 (1995). In the case of Fenderson v. West, 12 Vet.App. 119 (1999), the United States Court of Appeals for Veterans Claims held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. When assigning an initial rating, the rule stated in the case of Francisco v. Brown, 7 Vet.App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Therefore, if appropriate, at the time of an initial rating separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings". See Fenderson, at 123. The VA determines disability evaluations through a schedule of ratings, which is based on the average impairment of earning capacity resulting from specific service-connected disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a condition is encountered which is not specifically listed in the rating schedule, 38 C.F.R. § 4.20 permits the assignment of a disability evaluation for that condition in appropriate cases, based upon analogy to a similar, listed, condition. The Code requires that the two conditions be closely related not only in the functions affected, but also in their anatomical location and symptomatology. 38 C.F.R. § 4.20. II. Factual Background Private medical evidence from James Stephen Archer, M.D., and the Columbia Presbyterian Hospital, both of Oklahoma City, Oklahoma, contained in the claims file shows that, in April 1997, the veteran underwent a radical cystoprostatectomy with a pelvic lymph node dissection, and construction of an ileal neobladder, secondary to invasive transitional cell carcinoma of the bladder. Fortunately, his lymph nodes were clear of the cancer. Post-operatively, the veteran developed an acute urinary tract infection which required treatment with intravenous antibiotics before resolving. A letter from Dr. Archer, dated in September 1997, noted that the veteran had done well since June 1997, and had a good prognosis. The veteran was afforded a VA examination in September 1997. The examiner reported that the veteran had persistent urinary incontinence residual to his radical cystoprostatectomy. However, it was noted that as long as the veteran voided every two hours during the day, he could avoid urinary incontinence and would not have to wear an absorbent pad. The examiner further noted that the veteran did wear an absorbent pad at night, but otherwise had done well. The veteran was observed to have a mid line surgical scar from the umbilicus to the suprapubic area that was well healed and nontender. The clinical impression was postoperative radical cystoprostatectomy, secondary to adenocarcinoma of the prostate and transitional cell carcinoma of the bladder without metastasis; and, ileoneal bladder secondary to the first diagnosis with intermittent urinary incontinence. By rating decision in October 1997, the veteran was awarded service connection for the residuals of his radical cystoprostatectomy and ileal neobladder, based primarily on the fact that he was found to have been exposed to gamma radiation during Operations WIGWAM, REDWING, PLUMBOB AND HARDTACK I and had subsequently developed bladder cancer. The RO assigned a 100 percent evaluation to that disability for the veteran's surgical recuperation period from July 28, 1997 through November 30, 1997, and assigned a 40 percent evaluation for the period commencing December 1, 1997, by analogy to Diagnostic Codes 7517-7528. 38 C.F.R. § 4.115b, Diagnostic Codes 7517 and 7528. He was also awarded special monthly compensation for loss of use of a creative organ. The veteran filed a notice of disagreement and appealed from that decision. Diagnostic Code 7528 provides that a malignant neoplasm of the genitourinary system will be assigned a 100 percent disability rating. Further, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent 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 § 3.105(e) of 38 C.F.R. If there has been no local recurrence or metastasis, a rating will be assigned by analogy to the residuals of a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. §§ 3.105(e), 4.115(b) (1999). Diagnostic Code 7517 specifically provides that bladder injury will be rated as "voiding dysfunction" under 38 C.F.R. § 4.115a. 38 C.F.R. § 4.115b, Diagnostic Code 7517. In turn, 38 C.F.R. § 4.115a provides that "voiding dysfunction" will be rated for a particular condition as "urine leakage, frequency [of urination], or obstructed voiding." The rating criteria regarding continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence, provide that where the leakage requires the wearing of absorbent materials which must be changed two to four times per day, a 40 percent disability rating is warranted. Leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants the assignment of the highest 60 percent rating for this disability. The rating criteria regarding frequency of urination provide that, where daytime voiding occurs at an interval of less than one hour, or there is awakening to void five or more times per night, a 40 percent rating is warranted, which is the highest rating for urinary frequency symptomatology under 38 C.F.R. § 4.115a. In his notice of disagreement, received at the RO in December 1997, the veteran stated that he had just recovered from a second urinary tract infection, and that while he had the active infection, he had decreased control of his urinary outflow and had to wear and change absorbent materials four to six times per day. He further stated that he felt sure he would need to wear absorbent materials in the future if he were to return to work, or were to travel by airplane. Further, he expressed his belief that the 40 percent disability rating assigned for his urinary incontinence did not take into account his loss of use of a creative organ. A personal hearing was scheduled for the veteran before a Member of this Board sitting at the RO in February 1999. However, in approximately January 1999, the RO was notified that the veteran wished to cancel the hearing due to ill health. Upon consideration of the evidence contained in the claims file, the Board finds that the symptoms of the residuals of radical cystoprostatectomy and ileal neobladder for the period commencing December 1, 1997 approximate the criteria for a 40 percent evaluation. However, the Board also finds that the veteran's symptomatology did not rise to a level which might otherwise have warranted a 60 percent disability rating under the rating criteria for a voiding dysfunction resulting from surgery for bladder cancer. 38 C.F.R. § 4.115b, Diagnostic Codes 7517 and 7528. The evidence presented, including the veteran's own statements, shows that normally the veteran can function during the daytime hours without wearing absorbent materials, as long as he voids every two hours. He has stated that when he had a urinary tract infection, he needed to wear absorbent materials during the daytime hours and to change them four to six times per day. However, the evidence contained in the claims file shows that he has had only two such infections since his bladder surgery. Thus, it appears that it is only rarely that he needs to wear absorbent materials at all during the daytime hours. The Board considered whether the veteran might be entitled to a higher disability rating under Diagnostic Code 7527, which covers prostate gland injuries, infections, hypertrophy, and post-operative residuals. However, that Diagnostic Code provides ratings by analogy to voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7527 (1999). As voiding dysfunction is this veteran's primary symptom, that would mean utilization of the rating criteria under 38 C.F.R. § 4.115a for voiding dysfunction - which has already been done in this case. Further, the medical evidence has not shown that the surgical scar of the lower abdomen is poorly nourished with repeated ulceration, or painful and tender on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (1999). In fact, the scar observed on VA examination in September 1997 was found to be well healed and nontender. Accordingly, a separate compensable rating under the holding in Esteban v. Brown, 6 Vet. App. 259 (1994), is not warranted. There has been no evidence presented to show that the veteran's post-surgical voiding dysfunction, as documented in his September 1997 VA examination report, has worsened since December 1, 1997. Thus, the Board finds that staged ratings are not required in this case, and that 40 percent is the most appropriate evaluation for the veteran's radical cystoprostatectomy and ileal neobladder residuals for the entire time period commencing December 1, 1997. The evidence with regard to this matter is not so evenly balanced as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. In reaching its decision, the Board considered the complete history of the disability in question as well as current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.16 (1999). Further, the Board has found that in this case the disability picture is not so exceptional or unusual as to warrant an evaluation on an extraschedular basis. There is no indication that the veteran's radical cystoprostatectomy and ileal neobladder residuals are currently productive of marked interference with his employment or that they necessitate frequent periods of hospitalization. In the absence of such factors, the Board is not required to discuss the possible application of 38 C.F.R. § 3.321(b)(1) (1999). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). With regard to the veteran's concern that his loss of use of a creative organ is not being compensated in this 40 percent evaluation, the Board would point out that, in fact, the veteran is already receiving special monthly compensation for that residual of his prostate surgery. ORDER Entitlement to a disability rating in excess of 40 percent for the residuals of a radical cystoprostatectomy and ileal neobladder, secondary to transitional cell carcinoma of the bladder, for the period commencing December 1, 1997, is denied. D. J. DRUCKER Acting Member, Board of Veterans' Appeals