Citation Nr: 0001621 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 94-36 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 20 percent for cystitis prior to February 17, 1994. 2. Entitlement to a rating in excess of 40 percent for cystitis subsequent to February 16, 1994. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from December 1943 to May 1946. This matter came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board last remanded the case to the RO in July 1997, and it is now before the Board for further appellate consideration. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In the appeal period prior to February 17, 1994, there was no medical evidence including a diagnosis of cystitis except by history, and the only diagnosis with which urinary symptoms were associated were benign prostatic hypertrophy (BPH), bladder outlet obstruction secondary to BPH and detrusor instability secondary to BPH. 3. Subsequent to February 16, 1994, the only diagnosis of cystitis has been associated with intermittent urinary burning relieved by medication; medical evidence associates the veteran's daytime urinary frequency, nocturia, urinary incontinence, leakage and other urinary problems with BPH and bladder outlet obstruction secondary to BPH. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for cystitis prior to February 17, 1994, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.115a, Diagnostic Code 7512 (1993). 2. Subsequent to February 16, 1994, the criteria for a rating in excess of 40 percent for cystitis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.115a, Diagnostic Code 7512 (1993); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7512 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. § 4.1 and § 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service-connected cystitis. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that the rating issue presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the veteran's service-connected cystitis. Background Briefly, the record shows that in a rating decision dated in January 1948, the RO granted service connection for cystitis and assigned a noncompensable rating effective from the day following separation from service in May 1946. In an October 1987 rating decision, the RO denied service connection for enlargement of the prostate causing partial outlet obstruction of the urinary bladder. The veteran did not appeal. In a rating decision dated in February 1990, the RO granted an increased rating, to 20 percent, for cystitis effective from November 1989. The veteran appealed the effective date, and in a decision dated in April 1991, the Board concluded that the effective date for the 20 percent rating was in September 1986. In February 1992, the veteran filed a claim for an increased rating contending that his condition had worsened. The RO continued the 20 percent rating in a rating decision dated in September 1992, and the veteran disagreed with that decision. The veteran testified at a hearing before a Hearing Officer at the RO in June 1993. In his decision dated in October 1994, the Hearing Officer considered revisions to the rating criteria for the genitourinary system that became effective February 17, 1994. The Hearing Officer affirmed the 20 percent rating prior to February 17, 1994, and based on the revised rating criteria, granted a 40 percent rating for the veteran's cystitis effective February 17, 1994. The RO implemented the Hearing Officer's decision and in a letter dated in November 1994 notified the veteran that unless he indicated satisfaction with the decision within 30 days, his appeal would be continued. The veteran did not indicate he was satisfied with the award, and instead argued that his symptoms warranted a 40 percent rating under the rating criteria in effect prior to February 17, 1994. In its remands the Board interpreted the veteran's statements as disagreement with the effective date for the 40 percent rating. However, in view of the veteran's subsequent contentions that his cystitis warrants a 60 percent rating, the Board has reframed the issues as they appear on the title page. VA outpatient records show that in January 1991, the veteran was seen for a semi-annual checkup. He reported the same symptoms (previous record entries dated in 1989 and 1990 showed complaints of awakening to void twice per night and it had been shown that the veteran had slight intravesical protrusion and some residual urine.) Urinalysis in January 1991 was normal. VA outpatient records show that in October 1991 the veteran was noted to have a history of dysuria and frequency with nocturia 3 to 4 times. He also complained of decreased force of stream and hesitancy. The assessment after examination was irritative voiding symptoms. VA records show that the veteran was hospitalized overnight in November 1991 for cystoscopy and bladder washings. The veteran was noted to have a history of frequency, nocturia times 3 to 4, urgency, mildly decreased force of stream and occasional dysuria. Findings were normal anterior urethra, enlarged prostate (trilobar hypertrophy), and diffuse trabeculations of the bladder with early diverticula formation. There was no evidence of polyps, tumors or mucosal lesions. VA outpatient records show that the veteran was examined in December 1991 and cystoscopy results were reviewed. The impression was documented bladder outlet obstruction secondary to BPH and detrusor instability secondary to BPH. It was noted that the veteran desired and accepted risks of medical management of BPH, and medication was prescribed. Outpatient records dated in February 1992 show that examination revealed a benign, slightly enlarged prostate. In March 1992, the veteran reported he still had frequency. The prostate was slightly enlarged, benign and soft. When seen for medication refills in June 1992, the veteran voiced no new symptoms or complaints. At a VA examination in August 1992, the veteran complained of having to urinate every 11/2 hours during the daytime and another 5 or 6 times at night. He said there was dysuria, but no hematuria. The physician noted the history of a normal intravenous pyelogram in October 1991 and the cystoscopy in November 1991, which showed a large prostate, diffused trabeculations of the bladder with cellulitis and no mucosal lesions. On examination, the prostate was smooth and non-painful. There was no pyuria; the veteran said there was bladder pain off and on all day, even when he was not urinating. There was no incontinence, and a urinalysis was normal. The final diagnosis was history of cystitis, bladder caliculi, etc. VA outpatient records show that later in August 1992 it was noted that the veteran complained of poor uroflow. The impression after examination was BPH/stricture. The veteran was again seen in the urology clinic in December 1992, and medications were adjusted. Two days later, he was seen in a VA emergency room requesting medications. He said he was having pain, burning and frequency of urination. He also stated his urinary stream was decreased. Examination showed increased sluggishness of the prostate, without nodularity. The diagnostic impression was rule out BPH. In June 1993, the veteran reported nocturia, 5 to 6 times. He refused transurethral resection of the prostate and said he still wanted conservative therapy. At the hearing at the RO in June 1993, the veteran testified that he had requested an increased rating for his cystitis because his frequency problems, burning sensations and pain had increased. He testified that in February 1992, his frequency was between 45 minutes and an hour. He said he felt pain and the burning sensation even after he emptied his bladder. He also stated that he experienced leakage. The veteran testified that the physician at the VA urology clinic had said that sometime he might need some surgery, but the veteran did not know whether the physician was referring to his prostate or to his cystitis. The veteran testified that whatever the physician was referring to, the purpose was to alleviate the burning and the frequency of urination and the pain. With respect to the report of the August 1992 VA examination, the veteran testified that he did not understand where the physician got the interpretation that his urinary frequency was about every 11/2 hours. The veteran testified that at the time of the examination his urinary frequency was anywhere from 45 minutes to an hour. The veteran testified that he underwent a procedure at the VA medical center in Allen Park, Michigan, in November 1992 and there was clinical follow-up in December 1992. He also testified that in January 1993 he went to a VA clinic as a walk-in appointment because of increased urinary frequency and pain. He testified that he estimated his frequency at that time was about every half- hour or 35 minutes. He testified that between January and June 1993 his urinary frequency was about half an hour and he continued to experience pain and a burning sensation. He testified that currently his frequency was about every 30 minutes. He testified that he would wake up at night because of fullness and pain and would have to get up to go to the bathroom. He testified that sometimes after 10 minutes he would have to get up again and return to the bathroom. He testified that he usually had to get up every 11/2 to 2 hours. He also testified that he had recently begun to experience some occasional leakage at night. VA outpatient records show that at the urology clinic in September 1993 the veteran complained of nocturia symptoms, frequency once every hour, dysuria, decreased force of stream, spray and dribbling. It was noted that he had been seen in the hospital in November 1991 with BPH. On examination, the physician noted a nodule on the prostate. At a VA examination in October 1993, the veteran complained of dysuria, urinating every half-hour in the daytime and four times at night. The physician noted the veteran had dribbling and trouble starting his stream, per history, but no incontinence. The physician also noted a prostatic ultrasound done prior to the clinical examination was normal. On clinical examination, the physician stated that the prostate had perhaps grade one hypertrophy and was slightly granular on palpation but no true mass. The final diagnosis was history of dysuria and frequency. The physician stated that prostatic problems and bladder obstruction were not found clinically. He said that in spite of a normal-sized prostate on ultrasound, it was possible for the prostate to enlarge inwardly and restrict the urethra and not be grossly enlarged. VA outpatient records show that the veteran was seen at a urology clinic in May 1994. He complained of nocturia 3 to 4 times, decreased force of stream, variable frequency and leakage. The physician noted that options were discussed with the veteran, who was against surgery at this time and wanted to continue medications. In July 1994, the veteran reported some improvement over the past 6 months. He complained of decreased force of stream, spraying, leaking, nocturia 3 to 4 times, and a frequency of 30 to 40 minutes during the day. The physician noted the veteran's post- voiding residual was 100cc. A cystometrogram showed filling to 335cc with leaking at 98cm. The stream was slow, and there was some difficulty passing the catheter. The assessment following examination was prostatism. The physician noted the veteran was not interested in surgery. Medications were adjusted. At a VA urology clinic in January 1995, the veteran reported nocturia 4 to 5 times, which was noted to be a slight increase, and he said leakage seemed a bit worse. He reported his force of stream was variable and he experienced hesitation and a sense of urgency after voiding as well as some occasional dysuria. The physician noted that the veteran was not considering a transurethral resection of the prostate and wished to go back on Proscar. The veteran returned in March 1995, and he complained of being bothered by frequency and urge incontinence. After examination, the impression was moderate prostatism. At the veteran's request, Proscar was prescribed. At the urology clinic in September 1995, the veteran reported no significant improvement in irritative symptoms, frequency, urgency or urge incontinence. Urinalysis was negative. After examination, the assessment was BPH, prostatism. Medications were adjusted. When seen at a VA urology clinic in January 1996, the veteran complained of frequency, nocturia 4 to 5 times, urgency, hesitancy and occasional leakage. After examination, the assessment was prostatism. Medications were adjusted. When seen in a general medicine clinic in February 1996 for follow-up concerning a left ear discharge, it was noted that the veteran had a history of refractory BPH and continued to have nocturia 4 times per night. The assessment included BPH. At the urology clinic in March 1996, the veteran reported adequate force of stream, nocturia 4 times per night, urgency, urge incontinence and voiding every 30 to 45 minutes. After examination, the impression was BPH, stable prostatism. It was noted that the veteran did not desire surgery. At the general medicine clinic in October 1996, it was noted the veteran's history included chronic cystitis and he complained of intermittent urinary burning relieved by medication. The assessment included chronic cystitis. When he was seen at a VA general medicine clinic in March 1997, it was noted that the veteran's history included chronic cystitis and BPH. He reported he was still having overflow incontinence as well as hesitancy, urgency and frequency. After examination, the impression included BPH and questionable chronic cystitis. At a VA urology clinic in March 1997, it was noted that the veteran had a history of urinary retention and impotence. Complaints included urge incontinence and occasional pain. After examination, the assessment was BPH and impotence. At a VA examination in December 1997, the physician reviewed the veteran's medical records and stated that in 1991 the veteran was noted to have a low flow rate. He stated that cystoscopy showed trilobar hyperplasia and bladder trabeculation. There had been progressive urinary symptoms since then with a repeat cystoscopy approximately a year prior to the examination. At the December 1997 examination, the veteran reported his urinary frequency was every 1 to 11/2 hours during the day with nocturia times 4. He said his stream was okay and complained of mild hesitancy, dysuria and post void dribbling. He reported urge incontinence and said he wore 1 to 2 diapers per day. The veteran was noted to be taking Prazosin. After examination, the diagnosis was urinary frequency, dysuria, urge incontinence, on Prazosin for BPH. In an addendum dated in February 1998, the physician noted that urinalysis and a urine culture and sensitivity were negative. The physician stated that a urodynamics study showed evidence of a mild obstructive pattern and a relatively low-capacity bladder (180-200ml.). In conclusion, the physician stated that the veteran had bladder outlet obstruction symptoms most likely due to BPH. The veteran underwent an additional VA examination by the same physician in December 1998. The physician referred to the December 1997 report and February 1998 addendum and stated that the history and physical examination had not changed since then except as noted. The veteran reported that dribbling had worsened and it was a little harder to start the urinary stream. He now double voided. There was no change regarding incontinence and he continued to use 2 diapers per day. After physical examination and urodynamics studies, the diagnoses were bladder outlet obstruction due to BPH (with low flow, high pressure on urodynamics), urge incontinence and no evidence of bladder contraction or cystitis. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Effective February 17, 1994, VA revised the criteria governing the rating of disabilities of the genitourinary system, including the criteria governing the rating of cystitis. See Fed. Reg. 2527 (1994); 59 Fed. Reg. 10676 (1994); 59 Fed. Reg. 14567 (1994), as amended at 59 Fed. Reg. 46339 (1994) (codified at 38 C.F.R. §§ 4.115a, 4.115b (1999). The United States Court of Appeals for Veterans Claims (Court) has held that where the law or regulations change after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Under the previous rating criteria, mild chronic cystitis warranted a noncompensable rating. A 10 percent rating required moderate cystitis with pyuria and diurnal and nocturnal frequency. A 20 percent rating required moderately severe cystitis with diurnal and nocturnal frequency with pain and tenesmus. Severe cystitis with urination at intervals of 1 hour or less and a contracted bladder warranted a 40 percent rating. Cystitis with incontinence requiring constant wearing of an appliance warranted a 60 percent rating. 38 C.F.R. § 4.115a, Diagnostic Code 7512 (1993). The new rating criteria for chronic cystitis are found at 38 C.F.R. § 4.115b, Diagnostic Code 7512 (1999). Under that code, chronic cystitis will be rated as voiding dysfunction. The criteria for voiding dysfunction are found at 38 C.F.R. § 4.115a (1999). Voiding dysfunction is rated according to particular condition as urine leakage, urinary frequency or obstructed voiding. Continual urine leakage, post-surgical urinary diversion, urinary incontinence or stress incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating. Urine leakage or incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times a day warrants a 40 percent rating. Urine leakage or incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a (1999). Urinary frequency with a daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. A daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115a (1999). Obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year warrants a noncompensable rating. A 10 percent rating is warranted for obstructive voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: (1) post void residuals greater than 150cc; (2) uroflowmetry showing markedly diminished peak flow rate (less than 10cc/sec); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilation every 2 to 3 months. A 30 percent rating is warranted where there is urinary retention requiring intermittent or continuous catheterization. The Board notes that 38 C.F.R. § 4.115a states that were diagnostic codes refer to specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. The Board has set out in detail the available medical evidence concerning the veteran's treatment and evaluation from 1991 through the most recent VA compensation examination in December 1998. Although the veteran contends that his service-connected cystitis warrants more than a 20 percent rating for the period before February 17, 1994 and more than a 40 percent rating thereafter, the Board finds that the evidence does not support the requested increased ratings. Rather, the medical evidence shows that prior to February 17, 1994, there was no diagnosis of cystitis except by history. The only diagnoses with which urinary symptoms were associated were BPH, bladder outlet obstruction secondary to BPH and detrusor instability secondary to BPH. As noted earlier, service connection has previously been denied for enlargement of the prostate causing partial outlet obstruction of the urinary bladder. The Board has considered the veteran's June 1993 hearing testimony concerning the progression and severity of his urinary symptoms including daytime frequency, nocturia, burning sensation and pain. He testified that it was because of the increase in these symptoms that he was seeking an increased rating for his service-connected cystitis. The Board points out, however, that although the veteran is competent to testify as to his symptoms, he is not, as a lay person, competent to furnish medical opinions or diagnoses, such as the conclusion that his reported symptoms were manifestations of cystitis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Further, the Board notes that the veteran testified that he had been told by a VA urologist that he might need surgery to alleviate his symptoms, but the veteran also testified that he did not know whether the physician was referring to his prostate or to this cystitis. Thus, the veteran's testimony on this issue is of limited probative value and is, in the Board's judgment, outweighed by the medical evidence, which does not associate the veteran's urinary symptoms with his service-connected cystitis. Incidentally, the Board notes that although the veteran testified that he underwent a urology procedure at the VA medical center in Allen Park, Michigan, in November 1992, that medical center has no record of having seen the veteran at that time, but the record does show that it was at Allen Park that the veteran underwent the cystoscopy in November 1991. As outlined earlier, under the rating criteria in effect prior to February 17, 1994, a 40 percent rating required severe chronic cystitis with urination at intervals of 1 hour or less and a contracted bladder, and a 60 percent rating required incontinence necessitating the wearing of an appliance. The evidence does not show cystitis of such severity during that period, and as the veteran's service- connected disability picture did not meet or approximate the criteria for a 40 percent rating, let alone a 60 percent rating, there is no basis for the assignment of a rating in excess of 20 percent prior to February 17, 1994. Concerning the period subsequent to February 16, 1994, the Board must consider the veteran's claim of entitlement to a rating in excess or 40 percent for cystitis under both the old and new rating criteria. Review of the medical evidence shows that subsequent to February 1994, there were two occasions when a physician mentioned cystitis. At a VA general medicine clinic in October 1996, it was noted that veteran had a history of chronic cystitis and he had no complaints except intermittent urinary burning relieved by medication. After examination, the assessment included chronic cystitis. In March 1997, again at a general medicine clinic, it was noted that the veteran's history included chronic cystitis and BPH, and he reported he was still having overflow incontinence as well as hesitancy, urgency and frequency. After examination, the impression included BPH and questionable chronic cystitis. In view of the assessment of BPH and no mention of cystitis at a urology clinic appointment less than 2 weeks later, the Board cannot associate the continuing urinary symptoms, other than the burning sensation on urination, with the service-connected cystitis. Further, the physician who examined the veteran at the VA compensation examinations in December 1997 and December 1998 reviewed the veteran's symptoms and study results. That physician associated the veteran's symptoms with bladder outlet obstruction due to BPH and in December 1998 stated explicitly that there was no evidence of bladder contraction or cystitis. The Board thus concludes that subsequent to February 16, 1994, the manifestations of cystitis have not included or approximated incontinence requiring the constant wearing of an appliance, which would be required for a 60 percent rating under Diagnostic Code 7512 under the Rating Schedule prior to revision. Further, there is no competent evidence that the manifestations of cystitis include or approximate urine leakage or incontinence requiring the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. It is only on this basis that a 60 percent rating for cystitis could be assigned under the Rating Schedule as revised. As the preponderance of the evidence is against a rating in excess of 40 percent for cystitis under either the old or new rating criteria, the appeal as to entitlement to a rating in excess of 40 percent for cystitis subsequent to February 16, 1994, must be denied. ORDER Entitlement to a rating in excess of 20 percent for cystitis prior to February 17, 1994, is denied. Entitlement to a rating in excess of 40 percent for cystitis subsequent to February 16, 1994, is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals