16-15 265
16-15 265
| Board of Vet. App. | May 22, 2017Background
- Veteran served active duty Feb 1964–Feb 1967 and was diagnosed with prostate cancer in Sept. 2012; treatment completed 2013 and he is in remission.
- Claim on appeal: increase rating for service‑connected prostate cancer residuals above the current 20% under DC 7527.
- VA obtained and associated service and VA medical records and provided a VA examination in Jan. 2016; examiner found voiding dysfunction with daytime voiding intervals of 1–2 hours and awakening once per night, no need for absorbent materials or appliance, and no recurrent symptomatic UTIs.
- Private records variably noted daytime frequency (as often as every half hour) and nighttime frequency 1–2 times, but later records denied incontinence and other significant urinary symptoms.
- Board evaluated whether symptoms meet higher schedular ratings (frequency, incontinence requiring pads, appliance use, recurrent UTIs, renal dysfunction) or warrant staged or extraschedular ratings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >20% for prostate cancer residuals | Veteran seeks higher rating based on urinary frequency and reported leakage/frequency | RO/VA: evidence shows daytime voiding 1–2 hrs, awakening once/night, no absorbent material or appliance use, no recurrent UTIs or renal dysfunction | Denied — 20% is proper; criteria for 40% or higher not met |
| Staged ratings under Fenderson | Symptoms fluctuated; may warrant higher ratings for some periods | Record lacks distinct time periods with severity meeting higher criteria | Denied — no separate periods warranting higher staged ratings |
| Extraschedular referral | Implicit: if schedular criteria inadequate, consider extraschedular | Board: regular schedular criteria adequately describe disability; not exceptional/unusual | Not referred — extraschedular not warranted |
| TDIU (total unemployability) | Not expressly raised by veteran | Board: record does not reasonably raise a TDIU claim | Not raised/considered; no TDIU claim found |
Key Cases Cited
- Pelegrini v. Principi, 18 Vet. App. 112 (discusses VA duties to assist and examination adequacy)
- Quartuccio v. Principi, 16 Vet. App. 183 (duty to assist precedent)
- Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.) (VA’s duty to assist and evidence development principles)
- Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (clarifies VA assistance obligations)
- Fenderson v. West, 12 Vet. App. 119 (staged ratings doctrine)
- Rice v. Shinseki, 22 Vet. App. 447 (TDIU claims are part of increased‑rating claims when raised)