Citation Nr: 0107243 Decision Date: 03/12/01 Archive Date: 03/16/01 DOCKET NO. 99-13 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for prostatitis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from June 1976 to October 1980. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). On December 13, 2000, a videoconference hearing was held before Bettina S. Callaway, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b) (c) (West 1991 & Supp. 2000). A transcript of that hearing has been associated with the record on appeal. In an October 1999 rating decision, the RO found that a claim of entitlement to service connection for ulcer disease was not well grounded. Since that decision, however, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted. Unlike the version of the law in effect at that time, the VA is now charged with the duty to assist almost every claimant and with the duty to provide certain notices to claimants to assist them in pursuing the benefit sought. The new law further provides that a claim denied as not well grounded between July 14, 1999, and November 9, 2000, such as the ulcer disease claim decided in October 1999, can be readjudicated under the provisions of the new law. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000). While the new law provides that a claimant must request such a readjudication, the Veteran's Benefits Administration, as a matter of policy, has indicated that it will initiate readjudication where it learns of such cases. Veteran's Benefits Administration Fast Letter 00-87 (Nov. 17, 2000). Therefore, the Board takes this opportunity to invite the veteran to file such an application for readjudication and refers the ulcer disease claim for readjudication to the RO. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant's service-connected prostatitis is manifested by a daytime voiding interval of thirty minutes to one hour and awakening to void three to five times per night; the appellant also wears absorbent materials that must be changed, at most, four times per day. CONCLUSION OF LAW The criteria for a 40 percent disability rating, but no higher, for prostatitis have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b Diagnostic Code 7527 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION At an August 6, 1998 VA genitourinary examination, the appellant complained of urinary urgency. He reported nocturia four times per night. He reported a daytime voiding interval of between thirty minutes and one hour. He reported pain in the perineum with defecation. He explained that the pain was worse when he had a hard bowel movement. He reported thick, white urethral discharge after a bowel movement. He stated that he had occasionally noticed urethral discharge on his undershorts. He did not wear a diaper or a pad, and he did not use any sort of penile clamp. He stated that he sometimes perspired but did not have any known fever. He stated that he had difficulty maintaining employment because he had to void so frequently. He reported that he had last worked, as a butcher, approximately one year previously. He stated that he was followed in the VA urology clinic and had frequent prostate massage treatments. Sitz baths had been prescribed but had not been helpful. His medication included Pyridium, Zoloft, resperidone, and Cogentin. He had also been given a four-week prescription of Floxin in June 1998. Examination of the external genitalia was within normal limits. Digital rectal examination revealed no prostatic enlargement. The consistency of the prostate was within normal limits, and there was no significant tenderness. Urinalysis revealed 10-15 white blood cell count per high-power-field. Urine nitrite test was positive. Prostate-specific antigen, from May 8, 1998, was less than 2. The examiner diagnosed recurrent prostatitis. From May 23, 1998, to May 26, 1998, the appellant was treated as an inpatient at a VA medical facility for suicidal ideation. Diagnoses included urinary tract infection. His medications were olanzapine, Zoloft, vitamin B, Vistaril, and Cipro. In a November 1998 statement, the appellant alleged that he had had surgery on November 19, 1998, for his prostate disability. He added that he would have to wear diapers for the rest of his life. In August 1999 the appellant was treated as a VA outpatient for complaints of pus from his prostate and diarrhea. He stated that he needed refills of his prescriptions and a new order of diapers for his incontinence. On September 14, 1999, the appellant was admitted to a VA homeless program. He stated that he was service connected for his prostate and that he used the bathroom frequently- approximately three to four times per day. He stated that he had not been treated for several months. He added that he needed to see a physician because one month previously he had had some bleeding from his rectum because of his prostate. He reported a history of chronic prostate problems that required use of diapers, but he indicated no use of diapers. On September 23, 1999, the appellant was placed in a VA incentive therapy program. He reported that he had lasted worked in 1993 as a meat cutter. He stated that he had been terminated from that job because of health problems. He explained that he was unable to retain employment because of his frequent use of the restroom. In October 1999, the appellant reported to a VA vocational rehabilitation specialist that he was unable to obtain employment because of his prostate problems. Later that month, he underwent a VA urology consultation. He reported a history of chronic prostatitis and recurrent urinary tract infections. He complained of frequency, with voiding frequency of four times during the day and three times per night. He reported no dysuria or hematuria. His last urinalysis had shown white blood cell count of 15-20. The examiner diagnosed urinary tract infection and prescribed Levaquin. In November 1999, the appellant's order for diapers was renewed. He reported a history of urinary incontinence secondary to prostatitis. In January 2000, the appellant was treated as a VA outpatient by a urologist. The appellant reported that the antibiotic prescribed in October 1999 had helped but that he had some recurrence of his symptoms. The examiner prescribed Levaquin. At the December 2000 videoconference hearing, the appellant testified that he used the restroom frequently-three to four times per day and four to five times per night. He stated that he had been prescribed diapers but that wearing them during the day embarrassed him. He stated that he wore them primarily at night. He stated that during the day, he had to change the diapers three to four times per day. He stated that he had last worked in approximately 1995 as a butcher. He explained that he had been terminated because of his frequent use of the restroom. He added that he had been unable to retain employment thereafter because his disability required him to use the restroom frequently. He testified that he had been hospitalized for his prostatitis in approximately 1986. He stated that he was required to take antibiotics every day and that he had quarterly follow-up treatment with his physician. He added that his physician had encouraged him to drink large amounts of water in order to flush his system. VA has a duty to assist veterans in the development of facts pertinent to their claims. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (November 9, 2000) (to be codified at 38 U.S.C. §§ 5103, 5103A, 5107); 38 C.F.R. § 3.103 (2000). In this case, there is no indication of additional relevant records that the RO has failed to obtain. The appellant was notified of the rating criteria applicable to evaluating his prostatitis, and the RO arranged for a VA examination of the appellant. No further assistance is necessary to substantiate the appellant's claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096; see also Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (holding that, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted). Having determined that the duty to assist has been fulfilled, the Board must assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2 (2000); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (2000). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2000), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2000). An evaluation of the level of disability includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2000). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2000). The appellant's service-connected prostatitis is currently rated as 20 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7527. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, or postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2000). Under 38 C.F.R. § 4.115a, voiding dysfunction is to be rated on the basis of urine leakage, frequency, or obstructed voiding. For urinary frequency, a 20 percent evaluation requires daytime voiding intervals between one and two hours or awakening to void three to four times per night. Daytime voiding intervals less than one hour or awakening to void five or more time per night warrant a 40 percent evaluation. See 38 C.F.R. § 4.115a (2000). At the August 1998 VA genitourinary examination, the appellant reported a daytime voiding interval of between thirty minutes and one hour. The appellant also reported urinary frequency of four times per night. Although the appellant has stated at other times, including at the December 2000 videoconference hearing that the uses the bathroom only three to four times during the day, the Board gives greater weight to the symptoms elicited by the examiner at the August 1998 examination. The appellant's report of daytime voiding frequency of three to four times per day seems inaccurate given that he reports the same or greater frequency at night and given the impairment of employment that he described. The Board has resolved any reasonable doubt regarding the extent of the disability in the appellant's favor. Therefore, the criteria for a 40 percent evaluation for frequency of urination are met based on a daytime voiding interval of between thirty minutes and one hour. A 20 percent rating is assigned for urine leakage requiring the wearing of absorbent materials which must be changed less than two times a day. Urine leakage requiring the wearing of absorbent materials which must be must be changed 2 to 4 times per day warrants a 40 percent disability rating. Continual urine leakage, post surgical urinary diversion, urinary incontinence, 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 warrants a 60 percent disability rating. Id. The appellant has been prescribed absorbent materials. The appellant testified at the December 2000 videoconference hearing that he changed his absorbent materials three to four times per day every day. He also indicated that he avoided wearing them during the day. Even considering the testimony that is most favorable to the appellant, the criteria for a 60 percent disability rating are not met. The appellant at most changes his absorbent materials four times per day. While this would satisfy the criteria for a 40 percent disability evaluation, as noted above, the appellant has already satisfied the criteria for a 40 percent disability evaluation based upon urinary frequency. A 30 percent disability rating is assigned for urinary retention requiring intermittent or continuous catheterization. Id. This is the maximum disability rating for urinary retention. As noted above, the appellant has already satisfied the criteria for a higher disability evaluation based upon urinary frequency. Further, the evidence of record contains no complaints of obstructed voiding. For urinary tract infections, a 30 percent disability rating is warranted for recurrent symptomatic urinary tract infections requiring drainage/frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management. Id. Although the medical evidence does show that the appellant has recurring urinary tract infections, the appellant has already satisfied the criteria for a higher disability evaluation based upon urinary frequency. Further, the record does not indicate that the appellant required drainage for urinary tract infections or frequent hospitalization for urinary tract infections. The record contains no evidence of intensive management, either continuous or intermittent. Considering the overall disability picture, the appellant's disability more nearly approximates the criteria for a 40 percent disability evaluation based upon the criteria for urinary frequency. The appellant does not satisfy the criteria for a 60 percent disability rating based upon urine leakage. ORDER Entitlement to a 40 percent disability rating, and no more, for prostatitis is granted, subject to the governing regulations pertaining to the payment of monetary benefits. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals