12-02 548
12-02 548
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served on active duty 1963–1965 and appealed an October 2010 RO decision; matter remanded in April 2016 and returned to the Board.
- Service‑connected residuals of prostate cancer rated 10% under 38 C.F.R. § 4.115b, DC 7528; erectile dysfunction related to prostate cancer is separately rated and not at issue.
- Relevant medical evidence: VA exams (Oct 2010, Apr 2012, May 2016) documenting daytime voiding intervals generally 2–3 hours, nocturnal voiding up to twice, occasional stress incontinence not requiring absorbent materials, no obstructive voiding or renal dysfunction, and recurrent UTIs not requiring hospitalization/drainage.
- The Board found duty to notify and assist satisfied; AOJ substantially complied with prior remand instructions and obtained an additional VA exam.
- No evidence showed symptoms meeting higher schedular criteria (no frequent changes of absorbent materials, no catheterization, no obstructive metrics, no frequent hospitalizations for UTIs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >10% rating for prostate cancer residuals | Veteran contends symptom severity (incontinence, frequency, worsening leakage) warrants higher rating | VA/Board contends exam findings show at worst daytime voiding 2–3 hrs, nocturnal voiding ≤2, stress incontinence not requiring absorbents, and no obstructive/renal dysfunction or severe UTIs | Denied — evidence supports only 10% rating under DC 7528/§4.115a |
| Whether further development/compliance with remand was required | Veteran sought additional records/providers; AOJ solicited but veteran did not provide releases | AOJ substantially complied with remand and obtained additional VA exam and SSOC | Board found duty to assist satisfied; no further development required |
| Whether separate or additional schedular ratings are warranted (e.g., scar, psychiatric) | Veteran alleged additional manifestations (scar, psychiatric effects) secondary to prostate residuals | Board: scar non‑compensable (non‑painful, <6 sq in), no current psychiatric diagnosis; erectile dysfunction already separately rated | No separate compensable ratings; no service‑connected psychiatric disorder found |
| Whether extraschedular evaluation is required | Veteran argues disability picture might be atypical/severe | Board: schedule adequately contemplates symptoms and severity shown; threshold for extraschedular not met | No referral for extraschedular evaluation required |
Key Cases Cited
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (VA need not discuss every piece of evidence; focus on evidence material to claim)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (benefit of the doubt rule and claimant’s burden)
- Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991) (prohibition on double-rating same manifestation under different diagnoses)
- D'Aries v. Peake, 22 Vet. App. 97 (Vet. App. 2008) (remand compliance standard — substantial, not strict, compliance)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App. 2008) (threshold for extraschedular consideration: schedular criteria inadequate to describe claimant’s disability)