PROSTATE CANCER

STEVEN D. REISS · 2026 · Case ID: A26007245

MIXED

Summary

The veteran, who served in the United States Marine Corps from August 1967 to March 1968, appeals the denial of an increased disability rating for status post prostate cancer. The veteran sought a rating higher than the 40 percent assigned, arguing the condition warranted this higher rating from November 6, 2017, the date of claim, through February 9, 2024. The veteran testified that since November 6, 2017, the condition has manifested as waking to void at least five times per night and changing absorbent materials once a day. The Board reviewed the Schedule for Rating Disabilities, specifically Diagnostic Code 7528 for genitourinary neoplasms, which allows for ratings based on voiding dysfunction or renal dysfunction residuals. The Board found that the veteran's symptoms, including nighttime voiding five or more times per night, supported a 40 percent rating. However, the Board determined that the evidence did not support a rating in excess of 40 percent for the entire appeal period, as the veteran did not require appliance use or more frequent changes of absorbent materials. The Board granted a 40 percent rating for status post prostate cancer from November 6, 2017, to February 9, 2024, but denied any rating higher than 40 percent for the period.

Rationale

Rating based on urinary frequency; Supports 40 percent rating from November 6, 2017; Weight of evidence against rating in excess of 40 percent

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7528

Docket No.

250512-545560

Full Decision Text

Citation Nr: A26007245
Decision Date: 01/27/26 Archive Date: 01/27/26

DOCKET NO. 250512-545560
DATE: January 27, 2026

ORDER

A 40 percent rating is granted for status post prostate cancer, effective from November 6, 2017, to February 9, 2024.

A rating in excess of 40 percent for status post prostate cancer is denied.

FINDINGS OF FACT

1. From November 6, 2017, to February 9, 2024, the Veteran's status post prostate cancer is manifested by daytime voiding interval less than one hour, or; awakening to void five or more times per night; absorbent materials must be changed less than two times per day.

2. Throughout the entire appeal period, the Veteran's status post prostate cancer is manifested by not more than daytime voiding interval less than one hour, or; awakening to void five or more times per night; absorbent materials must be changed less than two times per day.

CONCLUSIONS OF LAW

1. From November 6, 2017, to February 9, 2024, the criteria for a 40 percent disability rating for status post prostate cancer are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.21, 4.115a, 4.115b, Diagnostic Code 7528.

2. The criteria for a disability rating in excess of 40 percent, for status post prostate cancer are not met at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.21, 4.115a, 4.115b, Diagnostic Code 7528.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from August 1967 to March 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2025, the Veteran submitted a VA Form 10182 Notice of Disagreement (NOD) under the Appeals Modernization Act (AMA) framework, electing the hearing docket by the Board.

In September 2025, the Veteran testified at a hearing that was held before the undersigned Veterans Law Judge. The issues on appeal were clarified.

The Board notes parenthetically that the Veteran had another Board hearing before the undersigned on the same day, for an appeal on other issues in the legacy appeal system.

As to this appeal, the Board may only consider the evidence of record at the time of the notification of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

Increased Rating

Disability ratings are determined by applying the criteria established in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20.

Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App.
38 C.F.R. § 4.3.

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record.

1. A 40 percent rating is granted for status post prostate cancer, effective from November 6, 2017, to February 9, 2024.

2. A rating in excess of 40 percent for status post prostate cancer is denied.

Service connection and a noncompensable rating for status post prostate cancer were granted in a May 2024 rating decision, effective November 6, 2017.

A 40 percent rating was assigned in a July 2024 rating decision, effective February 9, 2024.

The Veteran seeks higher ratings for status post prostate cancer. First, he asserts the condition has been at the same level from the November 6, 2017, date of claim, testifying the condition has been manifested by having to get up for nighttime voiding at least five times per night, and changing absorbent materials once a day, since November 6, 2017. Thus, he feels that the 40 percent rating which was assigned effective February 9, 2024, should be assigned from November 6, 2017. Additionally, he urges generally that a rating in excess of 40 percent is warranted for the entire period on appeal.

The Veteran's status post prostate cancer is rated under Diagnostic Code 7528. Diagnostic Code 7528 governs malignant neoplasms of the genitourinary system (i.e., prostate cancer) and is assigned a 100 percent evaluation. However, a Note following that Diagnostic Code explains that following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures, 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 section 3.105(e) of the chapter. If there has been no local reoccurrence or metastasis, the disability is to be rated on its residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note.

Voiding dysfunction may be rated based on urine leakage, frequency, or obstructed voiding. For evaluations based on urine leakage, due to continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials, which must be changed less than two times per day. 38 C.F.R. § 4.115a, Diagnostic Code 7528. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials, which must be changed two to four times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day. Id.

For evaluations based on urinary frequency, a 10 percent evaluation is warranted for daytime voiding intervals between two and three hours or awakening to void two times per night. Id. A 20 percent rating is warranted for daytime urinary frequency intervals between one and two hours or nocturia three or four times a night. A 40 percent rating is warranted for daytime voiding intervals of less than one hour or awakening to void five or more times per night. Id.

For evaluations based on urinary tract infections, poor renal dysfunction is rated as renal dysfunction. A 10 percent evaluation is warranted for long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent rating is warranted
For evaluations based on urinary frequency, a 10 percent evaluation is warranted for daytime voiding intervals between two and three hours or awakening to void two times per night. Id. A 20 percent rating is warranted for daytime urinary frequency intervals between one and two hours or nocturia three or four times a night. A 40 percent rating is warranted for daytime voiding intervals of less than one hour or awakening to void five or more times per night. Id.

The Veteran's status post prostate cancer was diagnosed in 2014 and treatment, specifically radiation therapy, was completed in 2015.

The Board finds, considering the medical record as well as the Veteran's testimony as to manifestations of this disability, the record supports a rating of 40 percent from November 6, 2017, not just from February 9, 2024, but the record is persuasively against a rating in excess of 40 percent at any time. Rating based on urinary frequency provides the highest rating under the Veteran's circumstances.

During the appeal period, the Veteran's status post prostate cancer has been primarily manifested by urinary frequency with at most waking five times per night with nighttime voiding and changing absorbent materials less than twice per day. See, e.g., Veteran's September 2025 testimony. The Board as finder of fact finds that the condition did not worsen February 9, 2024, rather, it was manifested by this level of urinary frequency from November 6, 2017.

However, the Veteran does not maintain and the record does not reflect manifestations supporting a rating in excess of 40 percent at any time. At no time during the period on appeal has the record shown, nor has the Veteran reported, voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day. There is no renal dysfunction. 38 C.F.R. §§ 4.7, 4.115a.

The Board considered other potentially applicable diagnostic codes and finds none are applicable. 38 C.F.R. § 4.115B, Diagnostic Code 7528. As such, a higher disability rating under another diagnostic code is not warranted at any time.

Accordingly, the record supports a 40 percent rating from November 6, 2017, to February 9, 2024, but the weight of the evidence is persuasively against a rating in excess of 40 percent for the entire appeal period. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is therefore not for application as to this claim. Lynch, 21 F. 4th 776 (Fed. Cir. 2021).

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Nancy Rippel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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