RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxx	CASE:  PD1300020
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20130509
DATE OF PLACEMENT ON TDRL:  19970717
Date of Permanent SEPARATION:  20020619

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve LCDR/O-4 (1325, Naval Flight Officer) medically separated for complications of prostate cancer.  He was diagnosed with the condition in 1997, underwent curative surgery, but suffered residual urinary incontinence incompatible with reasonable performance of his duties, and was referred for a Medical Evaluation Board (MEB).  Adenocarcinoma of the prostate was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB (IPEB) found the condition unfitting, rated 100%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI was placed on the Temporary Disability Retired List (TDRL) with ratings as reflected in the chart below.  After 4 years on the TDRL, with interim evaluations, the condition was considered stable but still unfitting; the IPEB at this time (24 January 2002) arrived at a rating of 20% under VASRD criteria.  The CI initiated a series of appeals via a Formal PEB (FPEB), Petition for Relief, and the Board for Correction of Naval Records (BCNR), all of which affirmed the IPEB rating determination, and he was medically separated with a Service disability rating of 20%.

CI CONTENTION:  “Neither the formal board, the Petition for Relief, or the Board of Corrections for Naval Records objectively considered the new evidence presented under oath for justification of a higher disability rating.  Stress incontinence was never really discussed by any of my attending physicians.  Focus was, instead, on the disease and making sure I didn't have a recurrence.  I can't fault that way of thinking.  However, it was the lack of documentation on the true nature of my incontinence that would come back ‘to bite me’ so to speak.  Except for one particular check up where I brought up the issue of ongoing incontinence and seepage, there is very little discussion on this subject.  If the surgeons didn't think it was that important, why should I think differently.  During the five years I was on TDRL status, l was rated unfit for duty and had a disability rating of 100%.  The informal board, however, reduced my disability rating from 100% down to 20%.  The formal board rejected (in my words) new evidence provided by the VA Hospital (Hampton, VA) and a private practice urologist who I saw for a ‘2nd opinion’.  It was during the early part of this process that the VA increased my disability rating to 60%.  The information used by the VA to arrive at this new rating was the same information provided to both the medical board and to the BCNR.  You will see in some of the correspondence that the ‘justification for denial’ centered on the fact they found no wrong doing by the surgeons.  I never said they did.  All I did was present new undocumented medical evidence not annotated in my records in defense of my claim.  As l said in one of my letters, unlike cancer, stress incontinence can't be seen or measured by a medical test.  Today, fifteen years after surgery and 10 years after my release from military service, I'm still dealing with mild to moderate incontinence which means wearing and changing pads several times a day, everyday.”  There were 11 documents included with the application (Service correspondence, VA correspondence, letter from private physician) which were reviewed by the Board and considered in its recommendation.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting prostate cancer condition (and urinary residuals) is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the BCNR.

RATING COMPARISON:

FPEB – 20020520	VA (7 Mo. After Permanent Separation) - Effective 20030113	
TDRL Entry - 19970717	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Adenocarcinoma, Prostrate	7528	100%	20%	Adenocarcinoma, Prostrate	7512-7528	60%*	20030113	
No Additional MEB/PEB Entries	Other X 1	20030113	
Combined:  100% → 20%	Combined: 60%	
Derived from VA Rating Decision (VARD) dated 20031209 (most proximate to date of permanent separation).   
* Initial rating of 20% from VARD dated 19980205 (for voiding dysfunction from exam of 19971017); increased based on exam
   of 20030113.

ANALYSIS SUMMARY:  

Adenocarcinoma of the Prostrate:  The CI’s prostate lesion was discovered incidental to a physical examination for anticipated separation from active duty in January 1997; he was diagnosed with adenocarcinoma.  He was retained on active duty and underwent radiation therapy, followed by a radical prostatectomy in March 1997.  He was then placed on TDRL for continued treatment and surveillance.  He underwent his first VA Compensation and Pension (C&P) evaluation in October 1997.  That examiner recorded “urinary incontinence requiring a small pad at times;” this was the basis for the VA’s initial 20% rating (which was beyond the allowed 6 month interval for a 100% stabilization rating).  The CI underwent his first periodic TDRL reevaluation in April 1999, at which time there was no evidence of cancer recurrence.  That examiner stated “he has complained of erectile dysfunction and male stress urinary incontinence.”  The latter was elaborated as, “The patient does state that he has continued leakage of urine with cough, sneeze, rising from a chair or heavy lifting.”  It was noted that he was “actively working as a civilian without difficulties,” and “has currently not lost any time from work secondary to these afflictions.”  It was advised that he remain on TDRL.  A TDRL reevaluation in September 2000 noted continued remission and that, “he has recovered well and has only mild residual stress urinary incontinence with loss of urine secondary to strenuous Valsalva [abdominal straining] type activities.”  He remained cancer free (3 years post-op) and was “currently fully active physically and employed full time as a System Analyst.”  The CI underwent a third TDRL reevaluation November 2001, at which time the examiner recorded, “The patient has no complaints.  The patient does have occasional leakage of urine at the end of the day.”  The final TDRL reevaluation of April 2002 is excerpted below.
The patient notes that he voids approximately every 1 to 1½ hours.  He gets up in a six-hour period approximately once at night.  The stress incontinence generally averages one pad per day, occasionally requires two pads per day, but the patient generally tries to minimize the pads since the constant moisture does cause some skin irritation.
At this point the CI had remained in remission for a 5 year period under TDRL surveillance, and was considered stable for final adjudication.  He had remained fully employed with no lost work days from the disease.  There was no evidence of renal dysfunction, chronic pain, or other systemic or constitutional complaints.  The permanent residuals were thus confined to impotence and stress urinary incontinence.  Although the precise descriptions of the severity of the latter varied somewhat from exam to exam, there is no indication that the incontinence worsened over the course from the end of the initial 6 month stabilization period through the 5 year TDRL surveillance period preceding separation.  Service findings, rating details, and the course of appeals leading up to permanent separation with a 20% rating are discussed below.  Following separation, on 12 September 2002, the CI appealed to the VA for an increase in the earlier 20% VA rating.  He then underwent a repeat C&P evaluation (as charted above) ~7 months following permanent separation.  The rating evidence from that examination is excerpted below.
Since then [surgery], he has been noticing incontinence of urine and uses a pad three to six times a day.  ... This seems to be a daily disability for the veteran and he replaces his pad, which becomes soaked, several times a day.  His frequency of urination is seven to eight times at intervals of one-and-a-half to two hours.  At nighttime, he gets up at least once or twice to urinate for every three to four hours.
The VA examiner did not note any worsening symptoms over time since surgery, or comment on any recent exacerbation.  With his application, the CI submitted an outpatient VA urology note from November 2003 (16 months post-separation) stating that he “must use 3 or more pads or other absorbent material daily.”  He also submitted a civilian urologist’s letter from August 2004 (2+ years post-separation) stating, “He needs to change pads anywhere from 3-6 times a day depending upon activity.”

The Board directs attention to its rating recommendation based on the above evidence.  The unequivocal code for rating is 7528 (malignant neoplasms of the genitourinary system).  This confers a 100% rating during and for 6 months following active treatment; it then reads “rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.”  It is clear that the ratable residual in this case is voiding dysfunction, for which VASRD §4.115a offers the following ratings for urinary 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 ----------------------------------------------------------------------------------------------60%
Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day -------- 40%
Requiring the wearing of absorbent materials which must be changed less than 2 times per day --20%
A second route to rating for voiding dysfunction is for urinary frequency.  The only rating greater than 20% using this criteria is 40% for “daytime voiding interval less than one hour, or awakening to void five or more times per night.”  The 20% rating conferred by the IPEB at final separation is clearly consistent with the evidence as documented by all four periodic TDRL examiners, specifically the “averages one pad per day, occasionally requires two pads per day” cited in the final exam.  No clinical entries in the service treatment record (STR) from the TDRL period support the 40% criteria for urinary frequency. The FPEB rationale in defense of its support for a 20% rating specifically cited the final TDRL report, and added:
The member claimed he has to change underwear 3 to 4 times a day plus 2 pads per day.  However, the member indicated in testimony that he does not wear a pad while at work most of the time and does not keep a spare change of clothing at work most of the time.  The Formal PEB did not find the members testimony sufficiently convincing to overcome the documentation in the TDRL evaluations noting urinary frequency 1 to 1½ hours and on average changing of a pad less than two times a day.
In his Petition for Relief, the CI emphasized that TDRL examiners focused on disease recurrence and that, “Any discussion and write up about incontinence ... was purely superficial.”  He noted his preference for the use of “absorbent underwear” rather than pads; and, stated that following his initial 6 month recovery he had tapered from “8-10 pads a day ... to an average of 2 pads per day and 3 pair of underwear for an average of 5 changes in a 24 hour period, sometimes 6 changes.”  The petition also elaborated urinary frequency which would not meet the 40% criteria.  The response to the petition cited the evidence from the TDRL evaluations, again specifically quoting the focused documentation by the final examiner, and concluded that the preponderance of the evidence would not support the higher rating.  In his appeal to the BCNR, the CI contended “The PEB erroneously rejected my cotton underwear as ‘absorbent material’.”  He stated that he had not related his frequent changes of underwear in the context of the TDRL examinations, and his attorney stated that his cotton underwear was supplemented by pad liners.  The Service advisory opinion to the BCNR, which the BCNR referenced in support of its decision that the CI had been appropriately rated 20%, is excerpted below. 
Petitioner's BCNR application request for an increased rating percent appears to rely on the contention that Petitioner's custom of changing underwear - primarily when home in the evenings - ought to be considered as, basically, equivalent to changing ''absorbent materials.''  The latter materials were developed to have increased absorbency in order to reduce the frequency of required changes.  Petitioner's stated requirement for underwear changes do not appear to be equivalent to ''absorbent materials" changes for rating purposes or to reflect the overall impairment imposed by his Voiding Dysfunction for rating purposes.
All Board members agreed that a more favorable rating could not be supported via the §4.115a schedule for voiding dysfunction from urinary frequency.  Protracted deliberation ensued as to whether the 40% or 60% criteria could be supported for voiding dysfunction from incontinence.  Member consensus was that the post-separation VA evidence lacked sufficient probative value to weigh heavily on the Board’s recommendation.  All pre-separation evidence points to a stable acuity of the stress incontinence over the 5 year TDRL course, as would be anticipated clinically for a condition associated with fixed anatomical damage.  The repeat C&P exam and the resulting rating decision made no mention of any rating criteria other than frequency of pad changes.  The CI provides no indication that he changed his habits to exclusive use of pads in the interval between separation and the second VA rating evaluation.  Whatever the reason for the reported increase in pad changes, it can only be attributed to developments which occurred after permanent separation, and therefore is not reflective of the ratable disability at separation.  All members thus agreed that the Service evidence from the TDRL records, which included the in-service appeals, should be assigned predominant probative value for the Board’s recommendation, although the post-separation VA and submitted evidence was not disregarded.  It is acknowledged that the TDRL examiners were rightfully focused on the possibility of cancer recurrence, which was in fact the purpose of TDRL; but members did not agree that the issue of the urinary residuals was addressed in an entirely superficial manner.  Each examiner made some comment toward quantifying the severity, and the final examiner addressed it quite specifically.  It should also be noted that the first VA examiner was concerned with ratable severity of the residuals, and that the VA’s initial 20% rating was premised on that evaluation.  The first VA exam was performed ~7 months post-operatively; logically the incontinence (or frequency) would have been stabilized at that juncture (if anything, improving, not worsening).  

The CI’s position that he had not conveyed the distinction between underwear changes and pad changes during these routine examinations is a reasonable one, but begs the question as to whether this reflects the equivalency of disability IAW §4.115a guidance.  It is not a question of whether cotton underwear (with or without liner) is rightfully described as “absorbent materials;” but rather whether saturated underwear (with or without liner) is an equivalent metric to a saturated pad (as the criteria are commonly understood and clinically expressed) for measuring disability under §4.115a.  The CI’s FPEB testimony (as conveyed by the response) suggests that the severity of incontinence over the course of the workday was tolerated without use of pads or availability of underwear change, and this is difficult to reconcile with the need to change “absorbent materials” (however defined) more than 2 times per day on average.  As noted above, the distinction between absorbent pads and underwear changes did not surface for the VA in its decision to increase the rating, since the VA’s rating criterion was reported pad changes.  After protracted deliberation, all members agreed that it was overly speculative to substitute the reported underwear changes for the common interpretation of absorbent materials as referring to urinary pads logically intended to avoid frequent underwear changes.    Even with generous concession to reasonable doubt, the logical inconsistencies and contradictory evidence associated with the contended position cannot be sufficiently overcome.  After due consideration of the preponderance of the evidence, members agreed that the Board cannot recommend a change in the PEB adjudication of the prostate cancer condition (urinary residuals).

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the prostate cancer condition and IAW VASRD §4.115b, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Adenocarcinoma of the Prostrate (Urinary Residuals)	7528	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121229, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW 
                                        BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 19 Aug 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- former USMC    
- former USN
- former USMC
- former USN 
- former USMC
- former USN 
- former USN
- former USMC
- former USN