Citation Nr: 0302513 Decision Date: 02/10/03 Archive Date: 02/19/03 DOCKET NO. 99-22 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable disability rating for urinary tract infection, based on an initial award. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from October 1984 to September 1988, and from February 1989 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the veteran entitlement to service connection for urinary tract infection, assigning the disability a noncompensable rating. In November 1994, the veteran notified VA of her dissatisfaction with the assigned rating. FINDINGS OF FACT 1. The VA's duty to assist the veteran in developing all evidence pertinent to the claim has been met. 2. Prior to the veteran's September 2002 VA examination, her urinary tract infection was mild without pyuria with diurnal and nocturnal frequency, and without urine leakage, frequency, or obstructed voiding. 3. The veteran's September 2002 VA examination report diagnosis urinary tract infection and notes urinary frequency, with voiding every two to three hours during the day and once or twice during sleeping hours. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for urinary tract infection, from the effective date of the grant of service connection through September 19, 2002, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.321, 3.326(a), 4.1-4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (1992 & 2002). 2. The criteria for a 10 percent rating for urinary tract infection, effective from September 20, 2002, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.321, 3.326(a), 4.1-4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (1992 & 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. The Board finds that the correspondence sent to the veteran in October 1994 and June 2001, describing what VA would do to assist the veteran, the evidence the veteran needed to provide, and the evidence the VA had, as well as a September 1999 Statement of the Case and an October 2002 Supplemental Statement of the Case, provided to both the veteran and her representative, provided notice to the veteran of what the evidence of record revealed. Additionally, these documents provided notice why this evidence was insufficient to award the benefit sought. Thus, the veteran has been provided notice of what VA was doing to develop the claim, notice of what she could do to help her claim, and notice of how her claim was still deficient. Cf. Quartuccio v. Principi, 16 Fed App. 183 (2002). No further assistance is necessary to comply with the requirements of this new legislation, or any other applicable rules or regulations regarding the development of the pending claim. Increased Rating-general provisions Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. It is essential, both in the examination and in the evaluation of disability, that each disability be reviewed in relation to its history. See 38 C.F.R. § 4.41. Where the question for consideration is propriety of the initial evaluation assigned, as it is in this case, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The veteran's service-connected urinary tract infection is rated under diseases of the genitourinary system in VA's Schedule for Rating Disabilities, specifically, under 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7512, pertaining to chronic cystitis. By regulatory amendment effective February 17, 1994, changes were made to the schedular criteria for evaluating chronic cystitis. Where the law or regulations governing a claim change while the claim is pending, as in the veteran's case, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In deciding such case, the Board must determine whether the previous or revised version is more favorable to the veteran. However, if the revised version is more favorable, the retroactive reach of that regulation can be no earlier than the effective date of the change, and the Board must apply only the earlier version of the regulation for the period prior to the effective date of the change. See 38 U.S.C.A. § 5110(g); see also VAOPGCPREC 3-2000 (2000). Under the criteria for chronic cystitis in effect prior to February 17, 1994, Diagnostic Code 7512 provides that mild chronic cystitis warrants a noncompensable rating. Moderate cystitis, with pyuria, diurnal and nocturnal frequency, warrants a 10 percent rating. Moderately severe cystitis with diurnal and nocturnal frequency with pain and tenesmus, warrants a 20 percent rating. Severe cystitis, with urination at intervals of one hour or less, or with a contracted bladder, warrants a 40 percent rating, and where incontinence exists, requiring constant wearing of an appliance, a 60 percent rating is warranted. See 38 C.F.R. § 4.115a. Under the revised criteria, effective February 17, 1994, for chronic cystitis, including interstitial and all etiologies, infectious and non-infectious, chronic cystitis is rated as voiding dysfunction. See 38 C.F.R. § 4.115b. If continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence results in voiding dysfunction requiring the wearing of absorbent materials, which must be changed less than two times per day, warrants a 20 percent rating. If the absorbent materials must be changed two-to-four times per day, a 40 percent rating is warranted. If the voiding dysfunction requires the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day, a 60 percent rating is warranted. See 38 C.F.R. § 4.115a. If continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence results in urinary frequency necessitating daytime voiding, with the interval between voiding is between two and three hours, or awakening to void is two times per night, a 10 percent rating is warranted. If the interval for daytime voiding is between one and two hours, or awakening to void three to four times per night, a 20 percent rating is warranted. If the interval between voiding during daytime is less than one hour, or awakening to void five or more times per night, a 40 percent rating is warranted. Id. Based on the veteran's service medical records and post- service VA examination, the RO granted the veteran entitlement to service connection for urinary tract infection in August 1994, effective from the time of her separation from active duty in January 1991. A noncompensable rating was assigned, to which the veteran expressed her dissatisfaction, and which has since remained in effect. The veteran's service medical records show that she was treated on a number of occasions for urinary tract infection. Post-service VA examination report of April 1991 includes the diagnosis of a history of recurrent urinary tract infections. The veteran's VA outpatient treatment records for July and August 1991 show she was seen for complaints of urinary tract infection. Urinalysis was negative. VA examination of October 1991 revealed no significant pelvic abnormalities. Her VA outpatient treatment records for July 1991 to January 1995 show that she was seen on about five occasions between January 1992 and August 1993 for complaints of urinary tract infection; however, examination results were consistently negative, as were urinalysis results. She underwent VA psychiatric evaluations in December 1994 and June 1998, which do not indicate any complaints pertaining to urinary tract infection. Private medical records from Bay Medical Center for various periods between June 1996 and October 2000 show that, in October 2000, the veteran was seen for complaints of urgency of urination, with intermittent frequency on and off for about one month, and for abdominal bloating. The impression was urinary tract infection. A few days later, she was see for her yearly check-up, where she reported having some pelvic pain in the left lower quadrant, bloating and discomfort. Pelvic ultrasounds scan revealed uterus with normal size, shape and position. The endometrial stripe was very thin and there was some fluid in the cul-de-sac. The impression was pelvic inflammation, with some urinary tract symptoms. During the September 2002 VA examination, the veteran reported having urinary tract infection about one or twice each month, with the need to void about every two to three hours while awake, and that she had to get up one or two times at night. She reported no hesitancy, no incontinence, and a normal stream. She recently had been seen her private physician for a recurrent episode of urinary tract infection symptoms and that a urinary tract infection was diagnosed by urinalysis. She had not undergone cystoscopy, but had an appointment in a about a week with her private physician and would probably undergo a cystoscopy at that time. The veteran has not provided VA with copies of either the urinalysis results or cystoscopy. On VA examination, she was in no acute distress; abdomen was soft and nontender; no costovertebral angle tenderness was found; and no fistula. The diagnosis was chronic, recurrent urinary tract infection (cystitis). Analysis Applying the relevant law and regulation to the facts of this case, the Board notes that under the regulations in effect prior to February 12, 1994, for a compensable evaluation, the medical evidence must show moderate pyuria with diurnal and nocturnal frequency; severe cystitis with urination at intervals of one hour or less, a constricted bladder; or incontinence requiring an appliance. With the medical evidence not reflective of such manifestations, the veteran's urinary tract infection is appropriately rated as mild warranting no more than a noncompensible rating under Diagnostic Code 7512 from the time of the award of service connection for urinary tract infection under the former criteria, and the noncompensable rating fully comports with the that schedular criteria. Effective from February 12, 1994, a noncompensable rating is appropriate under the current, revised criteria, in the absence of medical evidence showing chronic cystitis that includes interstitial and all etiologies, infectious and noninfectious. Such condition is evaluated under voiding dysfunction or urinary tract infection, whichever is predominant. For a 20 percent, or greater disability rating, under voiding dysfunction, the medical evidence must show urinary leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence resulting in the need to wear a absorbent material that must be changed more than twice a day. The veteran does not have such manifestations requiring the wearing of absorbent material. Likewise, under urinary frequency, there must be medical evidence of daytime voiding every two or three hours, for a 10 percent rating, and more frequently for higher ratings, or awakening to void from two times a night, for a 10 percent rating, to five or more times for a rating greater than 10 percent. Current medical evidence shows that the veteran claims she needs to void about every two to three hours while awake and that she needs to get up about one or two times during normal sleeping hours. Following examination of the record, and personal examination of the veteran, the examiner diagnosed chronic, recurrent urinary tract infection, cystitis. The veteran did not submit the private urinalysis results or cystoscopy report noted in the September 2002 VA examination report. Therefore, the earliest medical evidence of a worsening of her urinary tract infection is revealed during her September 2002 VA examination. Under the circumstances, as of the September 2002 VA examination, it appears that the veteran's urinary tract infection has become more akin to the criteria for a 10 percent, and no higher, disability evaluation under the revised regulations pertaining to dysfunctions of the genitourinary system. When, after considering all the evidence, a reasonable doubt arises regarding a determinative issue in a claim, the benefit of the doubt shall be given to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Under the circumstances, the Board finds that, as of the veteran's September 2002 VA examination, the revised regulations are more favorable. Hence, with all reasonable doubt being resolved in the veteran's favor, the Board concludes that, effective from September 20, 2002, the date of her VA examination, a 10 percent rating is appropriate for her urinary tract infection and fully and fully comports with the applicable schedular criteria. Under the circumstances, a noncompensable rating is appropriate for the veteran's urinary tract infection since the effective date of the award of service connection and, effective from the date of her September 2002 VA examination, a 10 percent, and no higher, disability rating is appropriate for her urinary tract infections under the current criteria. The above discussion is based on consideration of pertinent provisions of the VA's Schedule for Rating Disabilities. Additionally, the Board notes that there is no indication that the schedular criteria are inadequate to evaluate the veteran's urinary tract infection at any stage under consideration. In this regard, the Board notes that the medical evidence reflects that the veteran has not undergone prolonged hospitalization for her urinary tract infection or that the disability has caused marked interference with employment as to render impractical the application of the regular schedular standards during any stage under consideration. It should be remembered that, generally, the degrees of disability specified under the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.2. Hence, in the absence of evidence such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). At this point, the Board notes that the claims file reflects consideration of all evidence in light of the applicable rating criteria throughout the veteran's appeal. Hence, the RO has effectively considered the appropriateness of its initial evaluation under the applicable rating criteria in conjunction with the submission of additional evidence at various times during the pendency of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Likewise, In reaching this decision, the Board has considered the appropriateness of the initial rating for the veteran's urinary tract infection under the applicable criteria in conjunction with the submission of additional evidence at various times while the appeal was pending. ORDER As the assignment of a noncompensable disability rating, since the grant of service connection through September 19, 2002, for urinary tract infection, was proper, a higher evaluation for that period is denied. Subject to the law and regulations governing the payment of monetary benefits, entitlement to a 10 percent rating for urinary tract infection, effective from September 20, 2002, is granted. RENÉE M. PELLETIER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.