Citation Nr: 0502158 Decision Date: 01/28/05 Archive Date: 02/07/05 DOCKET NO. 94-35 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for cystitis and prostatitis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active duty from September 1951 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Atlanta, Georgia, Regional Office (RO). A videoconference hearing was held in August 1997 before a Veterans Law Judge (VLJ) who was assigned to conduct that hearing. A transcript of that hearing has been prepared and included in the claims folder for review. In November 2004, the Board contacted the veteran and informed him that the VLJ had retired from the Board, and that if the veteran so wished, he could provide testimony before a different VLJ. The veteran responded and informed the Board that he did not wish to have another hearing. In February 1998, the Board issued a decision regarding the issues of increased evaluations for a hiatal hernia and bilateral otitis externa. The Board remanded the four remaining issues, which included requests for increased evaluations for bilateral hearing loss and cystitis/prostatitis. The Board also remanded the issues involving service connection (for skin and psychiatric disabilities). The issue involving entitlement to a total disability evaluation based on individual unemployability due to the veteran's service-connected disabilities (TDIU) was also remanded to the RO. All were remanded for the purposes of obtaining additional information and further processing. Since that time, the RO has granted the veteran's request for a TDIU in a rating action, dated May 2004. Additionally, an increased evaluation was granted for the bilateral hearing loss in that same action. Service connection was not granted for the skin and psychiatric disabilities. The veteran then informed the VA, in June 2004, that he only wished to pursue his claim for an increased evaluation for cystitis and prostatitis, and that he was withdrawing the other issues from appellate review. Hence, the only remaining issue that is now before the Board is the single issue listed on the cover page of this action. FINDINGS OF FACT 1. The VA has fulfilled its notice and duty to assist to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issues addressed in this decision. 2. The veteran's cystitis and prostatitis symptomatology produces chronic urinary tract infections along with an increase in voiding functions during the day and at night. 3. The evidence does not reveal that the veteran must urinate every hour, that he must wear an appliance, or that he experiences incontinence. The evidence does not show that he has a contracted bladder or must wear absorbent materials or must use a catheter or must void five or more times during the night. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent for cystitis and prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1- 4.14, 4.104, Diagnostic Codes 7512 and 7527 (1993) and (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION In conjunction with his claim for an increased evaluation, the veteran has asserted that the RO erred in not assigning a higher rating for his disability involving cystitis and prostatitis. He maintains that the 20 percent rating does not take into account the discomfort, embarrassment, leakage, and other symptoms that can be attributed to these two conditions. He has therefore asked that the Board find in his favor and grant him a disability evaluation in excess of 20 percent. During the long course of the veteran's appeal, the Veterans Claims Assistance Act of 2000 (VCAA) became law (November 2000). See, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). In particular, this law redefines the obligations of VA with respect to the duty to notify and to assist. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment but not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099-2100 (2001), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). See also, 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004). With respect to the appellant's claim seeking entitlement to an increased evaluation for cystitis and prostatitis, VA's duties have been fulfilled to the extent possible. VA must notify the veteran of evidence and information necessary to substantiate the claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was notified of the information necessary to substantiate the claim by means of the discussions in the rating decisions, the statement of the case (SOC), and the supplemental statements of the case (SSOC). Specifically, in those documents, the appellant has been told that he needed to submit evidence supporting his assertions that his condition was more disabling than rated. He was told that he must show that the symptoms and manifestations produced by the cystitis and/or prostatitis qualified the veteran for a higher rating pursuant to the rating criteria found at 38 C.F.R. Part 4, Diagnostic Codes 7512 and/or 7527. VA informed the appellant of which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA, in a letter issued in December 2003, which spelled out the requirements of the VCAA and what the VA would do to assist the veteran. The VA also informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002). Here, the RO asked the veteran if there were any medical records that would assist the VA in deciding his claims. He informed the RO that he was receiving treatment from the VA. The veteran provided the requisite information and those documents were obtained, and have been included in the veteran's claim folder. The veteran also provided testimony before an RO hearing officer and the Board and copies of those hearing transcripts from these actions have been included in the claims folder for review. It seems clear that the VA has given the veteran every opportunity to express his opinions with respect to his claims and the VA has obtained all known documents and information that would substantiate the veteran's assertions. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The record reflects the veteran underwent numerous physical examinations to determine the nature and severity, of his prostatitis and cystitis - the most recent examination was performed in June 2003. Given the foregoing, the Board finds that the RO has substantially complied with the duty to procure examinations of the veteran and the Board's development instructions in its Remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Therefore, it is the conclusion of the Board that the requirements of the VCAA have been met by the RO to the extent possible, and there would be no possible benefit to remanding this case to the RO for its consideration of the requirements of the VCAA in this instance. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for initial consideration under VCAA, poses no harm or prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. The VCAA requires that VA must provide notice that informs the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. Furthermore, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004); and VAOPGCPREC 7-2004. In this case, the initial AOJ decision was made before November 9, 2000, the date the VCAA was enacted. The Board finds that any defect with respect to the VCAA notice requirement in this case was harmless error for the reasons specified below. There is no basis for concluding that harmful error occurs simply because a claimant receives VCAA notice after an initial adverse adjudication. See 38 U.S.C.A. § 7261(b)(2) (West 2002); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (there is no implicit exemption for the notice requirements contained in 38 U.S.C.A. § 5103(a) (West 2002) from the general statutory command set forth in section 38 U.S.C.A. § 7261(b)(2) (West 2002) that the US Court of Appeals for Veterans Claims shall "take due account of the rule of prejudicial error.") In reviewing the AOJ determination on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's decision. As provided by 38 U.S.C.A. § 7104(a) (West 2002), all questions in a matter which under 38 U.S.C.A. § 511(a) (West 2002) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-AOJ initial adjudication notice constitutes harmless error, especially since an AOJ determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104 (2004). There simply is no "adverse determination" for the appellant to overcome. Similarly, a claimant is not compelled under 38 U.S.C.A. § 5108 (West 2002) to proffer new and material evidence simply because an AOJ decision is appealed to the Board. Rather, it is only after a decision of either the AOJ or the Board becomes final that a claimant has to surmount the reopening hurdle. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement with regard to the issue discussed on appeal was harmless error. In letters to the veteran, along with the SOC and the SSOCs, the RO informed him of what information he needed to establish entitlement to an increased evaluation. The veteran was further told that he should send to the RO information describing additional evidence or the evidence itself. The notice was provided before the RO's most recent transfer of the appellant's case to the Board, and the content of that notice and various duty to assist letters, along with the SOC and SSOCs, fully complied with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2004). The various letters satisfy the VCAA content- complying notice. The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Therefore, to decide the issue addressed in this decision would not be prejudicial error to the claimant. In this case, although the VCAA notice letter that was provided to the appellant does not contain the "fourth element" per se, the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. In particular, the RO asked the veteran to tell VA about any additional information or evidence that the veteran wanted VA to try and get for him and to send VA the evidence that was needed as soon as possible. By various informational letters, the SOC, the SSOCs, and their accompanying notice letters, VA satisfied the fourth element of the notice requirements. All that the VCAA requires is that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2003) (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Here, the veteran is not prejudiced by the Board's consideration of his claim as VA has already met all notice and duty to assist obligations to the veteran under the VCAA. In essence, the veteran in this case has been notified as to the laws and regulations governing increased rating claims. He has, by information letters, rating decisions, the SOC, and the SSOCs, been advised of the evidence considered in connection with his appeal and what information VA and the veteran would provide. Thus, the Board finds that there has been no prejudice to the veteran that would warrant further notification or development. As such, the veteran's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard, 4 Vet. App. at 393. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2004). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2004) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2004) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2004) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the United States Court of Appeals for Veterans Claims (Court) has held that, 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. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2004). With respect to the issue before the Board, the appeal does not stem from the veteran's disagreement with an evaluation assigned in connection with the original grant of service connection, and the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are not for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2004). The veteran has asserted that his cystitis and prostatitis disability is under rated. During his hearing before the Board, conducted in August 1997, the veteran complained that he had to take a variety of medications to control the disability. He stated that he suffered from near constant pain and that he had previously had troubles urinating. However, at that same hearing, the veteran admitted that he did not have constant infections and that when he did suffer from one, he ingested medications to combat the infection. Additionally, the veteran stated that he frequently voided and that he was forced to wear pads to protect his clothing. The record reflects that after the veteran was discharged from the US Air Force, he applied for VA compensation benefits. One of the benefits he sought to obtain was entitlement to service connection for cystitis and prostatitis. The RO reviewed the veteran's records and subsequently granted service connection for this disability in March 1972. A 10 percent disability rating was granted. In 1991, the veteran applied for an increased evaluation for this disability. Initially the veteran was denied an evaluation in excess of 10 percent and the veteran appealed that decision. In August 1993, a VA examination was performed. That examination found an enlarged prostate that was boggy. The veteran also provided testimony before an RO hearing officer in September 1993. During that hearing, the veteran complained of the amount of times he needed to urinate. Subsequently, the RO hearing officer concluded that the severity of the veteran's disability entitled him to a 20 percent evaluation. The RO effectuated that determination in a rating action dated November 24, 1993. The veteran was notified of this action but he requested that an evaluation in excess of 20 percent be awarded for this disorder. As noted, in conjunction with the veteran's claim, the veteran's VA treatment records have been obtained and included in the claims folder for review. The records dating from 1994 onward do show repeated treatment for urology-type complaints. A treatment record from April 1995 shows that the veteran complaining of frequent voiding and dysuria. The same record notes that a prescription for amoxicillin was given. A September 1996 record noted specifically that the veteran was voiding between two to four times a night, with voiding only occurring two to three times during the day. The force of the urination was reported as decreased along with episodic hesitancy. A record, dated May 1997, reported that the veteran's PSA level, as of August 1996, was 0.4, and his creatine level was 1.0, as of April 1997. The examiner noted that the veteran was having treatment success with the use of "Proscan". The prostate was examined and it was reported as smooth and with no nodules. The veteran once again received treatment for complaints involving prostatitis/cystitis in February 1999. The veteran again complained of urinary frequency and discomfort. Testing was accomplished but did not reveal any active infections. Between 1999 and 2001, the veteran repeatedly received treatment at the Atlanta VA Medical Center. However, a synopsis of the treatment received during that time period reveals that most of those appointments were for treatment for aging diseases, congestive heart disorder, bursitis, diabetes mellitus and podiatry complaints. They do not show repeated specific treatment for cystitis or prostatitis. It is noted that the claims folder contains a copy of the veteran's Social Security Administration (SSA) records. These records show that the veteran was granted SSA benefits in May 1991. However, the veteran was granted these benefits based on the following health problems: severe chronic depression, coronary artery bypass, osteoarthritis, and gastrointestinal disorders. Cystitis and prostatitis were not mentioned in the award and thus, they are not for consideration. Finally, the claims folder contains a urological examination that was performed in June 2003. Prior to the examination, the veteran complained of pain on urination, slowing of the stream, difficulty in starting urination, an inability to hold his urination, and voiding frequency. On examination, the doctor noted that the veteran had an enlarged prostate. Although the examiner reported that the veteran had slow flow, the examiner attributed this to an obstructing prostate with a moderate degree of trabeculation of the bladder with cellule formation. The veteran's PSA count was normal and the urine was found to be normal, with no signs of infection. The doctor specifically diagnosed the veteran as suffering from a voiding dysfunction with recurrent urinary tract infections. It is noted that the doctor, in the above reported examination, did write that the veteran did not have urinary incontinency and did not require the use of absorbent material or pads. However, in a letter written to the VA by the veteran, dated June 2004, that he did use absorbent pads and had used said pads since the early 1990s. The veteran's service-connected disability (cystitis and prostatitis) has been rated under the provisions of 38 C.F.R. Part 4, Diagnostic Codes 7512 and 7527. Diagnostic Code 7512 related to chronic cystitis and Diagnostic Code 7527 corresponds to prostatitis. 38 C.F.R. Part 4. 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. However, where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such an award or increase shall not be earlier than the effective date of the Act or administrative issue. See 38 U.S.C.A. § 5110(g) (West 2002). In addition, the General Counsel of VA has held that if the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 1991) can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000. As such, the revised Rating Schedule for the veteran's disabilities cannot be applied to a claim prior to February 17, 1994. However, the old criteria may be applied to the period prior to and after February 17, 1994, if the old criteria is more favorable to the veteran in comparison with the new. 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. 38 C.F.R. Part 4 (1993). 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 (2004). Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. See 38 C.F.R. § 4.115a (2004). Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is warranted. When there is leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. Id. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night. A 20 percent rating contemplates daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 10 percent rating contemplates daytime voiding interval between 2 and 3 hours, or awakening to void 2 times per night. Id. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. Id. With respect to the old criteria for prostatitis, the old criteria required that the condition be rated as for chronic cystitis depending upon the functional disturbance of the bladder. 38 C.F.R. Part 4, Diagnostic Code 7527 (1993). Pursuant to the new criteria, in effect after February 17, 1994, residuals of prostate gland injuries, infections, and hypertrophy are evaluated as voiding dysfunction or urinary tract infection, which ever is predominant. Urinary tract infections (38 C.F.R. § 4.115a (2004)) requiring long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management warrant a 10 percent rating. Urinary tract infections where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management warrant a 30 percent rating. Id. In determining whether an increased evaluation is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon reviewing the longitudinal record in this case, it is the determination of the Board that the evidence does not support an evaluation in excess of 20 percent under the old criteria. The medical examinations have not shown that the veteran suffers from incontinence that require him to where an appliance continuously. Moreover, there is no indication that the veteran has a contracted bladder or that he must urinate at intervals of one hour or less. These are the basic requirements that have not been shown pursuant to 38 C.F.R. Part 4, Diagnostic Code 7512 and 7527 (1993). Although the veteran has complained about experiencing and being treated for chronic prostatitis, the record does not corroborate his contentions. The VA medical treatment records repeatedly show that the veteran's prostate was within normal limits or that it was slightly enlarged. With respect to urinary tract infections, it is true that the veteran has experienced numerous urinary tract infections during the course of the appeal. The veteran has had to take medications for the treatment of these infections and he has taken medications to help in the treatment of his prostatitis. However, those same records do not show that the veteran has undergone drainage or frequent hospitalization or continuous intensive management for the treatment of any urinary tract infections. With respect to urinary frequency, the veteran has not testified nor has he ever claimed that he must void every hour during the day or that he voids more than five times at night. Also, there is nothing in the record indicating that the veteran has ever required the wearing of a catheter, either occasionally or continuously. Since the veteran began his appeal, he has continuously complained about the amount of times he must urinate. He has also testified and written that he must use pads or absorbent materials. However, despite his assertions, a medical examiner has not repeatedly noted the use of pads or absorbent materials. Additionally, the veteran has never submitted any documentation showing the purchase of such absorbent materials or the prescribing of said pads. Hence, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim in that his cystitis and prostatitis is not manifested by a disability picture that would allow for a disability evaluation in excess of 20 percent under the new rating criteria. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent regardless of whether the veteran's disability is rated under the old or new rating criteria. Thus, the veteran's request for an increased evaluation for cystitis and prostatitis in excess of 20 percent is denied. In reaching the above determination, the Board considered whether the veteran's service-connected disability standing alone presents an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2003); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Significantly, however, no evidence has been presented showing factors such as a marked interference with employment beyond that interference contemplated in the assigned ratings or frequent periods of hospitalization, due solely to the veteran's service- connected cystitis and prostatitis, as to render impractical the application of the regular schedular standards. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2004) are not met. ORDER A disability evaluation in excess of 20 percent for cystitis and prostatitis is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs