Citation Nr: 0740068 Decision Date: 12/20/07 Archive Date: 12/26/07 DOCKET NO. 05-27 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether the 100-percent rating for adenocarcinoma of the prostate, status post radiation therapy, is permanent or static in nature. 2. Entitlement to an initial disability rating higher than 20 percent for diabetes mellitus. 3. Entitlement to an initial disability rating higher than 10 percent for incontinence. 4. Entitlement to an initial compensable disability rating for erectile dysfunction. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from May 1966 to 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The veteran may be raising additional issues based on statements made as part of his December 2004 notice of disagreement (NOD). Specifically, due to permanent and total service-connected disability, he seeks eligibility for Dependents' Educational Assistance (DEA) under Chapter 35 of the United States Code and eligibility for medical care under the VA's Civilian Health and Medical Program (CHAMPVA). The Board may not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 2002). The RO has not fully adjudicated any other issue and the Board may not unilaterally take jurisdiction of any additional claims. The RO should request the veteran to clearly indicate what additional claims, if any, he wishes to pursue. The RO should then take appropriate action to adjudicate these claims, if any. In any event, no other issues are before the Board at this time. FINDINGS OF FACT 1. The veteran's prostate cancer has been static since December 2002 and is without material improvement for nearly 5 years. 2. The veteran is over the age of 55. 3. The evidence shows the veteran has nighttime voiding of at least five times per night. There is no evidence of the need for catheterization or the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 4. The veteran experiences erectile dysfunction associated with his prostate cancer, but there is no evidence of physical deformity of the penis or atrophy of his testes. 5. The veteran's diabetes mellitus requires restricted diet, insulin, and oral hypoglycemic agents; however, there is no medical evidence that it restricts his occupational and recreational activities, causes progressive loss of weight, or that it involves episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice a month visits to a diabetic care provider. CONCLUSIONS OF LAW 1. The 100-percent rating for adenocarcinoma of the prostate, status post radiation therapy, is total, permanent, and static in nature. 38 U.S.C.A. §§ 5107, 7104 (West 2002); 38 C.F.R. §§ 3.327, 3.340 (2007). 2. The criteria are met for a higher disability rating of 40 percent, but no greater, for incontinence. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.27, 4.115a, 4.115b, Diagnostics Code 7599-7512 (2007). 3. The criteria are not met for a higher, i.e., compensable disability rating for erectile dysfunction. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.27, 4.31, 4.115b, Diagnostics Code 7599-7522 (2007). 4. The criteria also are not met for an initial disability rating higher than 20 percent for diabetes mellitus. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist As to the issue of whether the veteran's 100-percent rating for adenocarcinoma of the prostate is permanent and static, since the Board is answering this question in the affirmative, there is no need to discuss whether there has been compliance with the notice and duty to assist provisions of the Veterans Claims Assistance Act (VCAA) because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. As to the remaining claims at issue, review of the claims file reveals compliance with the VCAA, 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the veteran dated in July 2005 and May 2006. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him of the information and evidence not of record that was necessary to substantiate his increased initial rating claims; (2) informing him of the information and evidence VA would obtain; (3) informing him of the information and evidence he was expected to provide; and (4) requesting that he submit any evidence in his possession pertaining to his claims. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, with regard to pre-decisional VCAA notice, latter March 2006, May 2006, and October 2007 letters from the RO further advised the veteran that a disability rating and an effective date are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The Board sees the RO did not provide the veteran with general VCAA or Dingess notice prior to the initial November 2004 adverse determination on appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini II, 18 Vet. App. at 120. However, the claims at issue stem from an initial rating assignment. In this regard, the U. S. Court of Appeals for Veterans Claims (Court) has held that an appellant's filing of a NOD regarding an initial disability rating and effective date, such as the case here, does not trigger additional section 5103(a) notice. Indeed, the Court has determined that to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess at 491, 493, 500- 501. The Court, however, more recently clarified its holding in Dingess, indicating it was limited to situations where service connection was granted and the disability rating and effective date assigned prior to the enactment of the VCAA - so prior to November 9, 2000. If, as here, this did not occur until after that date, the veteran is entitled to pre- decisional notice concerning all elements of his claims, including these downstream disability rating and effective date elements. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Here, as alluded to above, the veteran received all VCAA notice including Dingess notice after, not prior to, the initial November 2004 adverse determination on appeal. However, it is significant that, except for diabetes mellitus, the veteran never filed a claim of service connection for any of the disabilities at issue - these claims were granted as secondary residuals of prostate cancer on the impetus of the RO alone. Consequently, for these issues, there was no service connection claim to provide notice for. In addition, the Federal Circuit Court and Veterans Claims Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. Sept. 17, 2007) (Mayfield IV) (where the Federal Circuit Court held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, however, although the RO provided its final VCAA Dingess notice in October 2007, it did not go back and readjudicate the claim by way of a subsequent SSOC. So unfortunately, any timing defect in the notice was not rectified. Concerning this, most recently, in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial. In other words, any error in the timing or content of VCAA notice is presumed prejudicial, and the VA has the burden of rebutting this presumption by showing that the error was not prejudicial to the veteran in that it does not affect the essential fairness of the adjudication. To do this, the VA must demonstrate: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Thus, to the extent it may be argued there is a presumption of prejudice due to a timing error for Dingess notice, the Board finds that any prejudice has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he reasonably understands from the notices provided what was needed. Specifically, the veteran submitted several personal statements addressing why he believes he is entitled to higher ratings. In fact, on an October 2007 VA Form 646, the veteran indicated that he had no further argument, and that he wanted his appeal forwarded to the Board for adjudication "as soon as possible." In addition, the actual notices provided by the VA are clear and pertinent to the veteran's contentions, such that a reasonable person could understand what was required to demonstrate higher ratings for the disabilities on appeal. Therefore, any deficiency in the timing of VCAA notice clearly did not affect the essential fairness of the adjudication, as the veteran clearly understood his rights under the VCAA. Overall, to the extent that the VA, under Sanders, may have erred in the timing of VCAA notices, all things considered, the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). As for the duty to assist, the RO has secured his service medical records (SMRs), relevant VA treatment records and laboratory tests, and had him undergo several VA examinations to determine the current severity of the disabilities at issue. Neither the veteran nor his representative has contended that any additional evidence remains outstanding. Thus, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). If a veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Because the veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection for incontinence, erectile dysfunction, and diabetes mellitus, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grants of service connection (October 13th and 29th, 2004) until the present. The Board will also consider earlier medical evidence to the extent that it is found to shed additional light on the veteran's overall disability picture. This could result in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his disabilities have been more severe than at others. Id at 126. Permanent or Static Nature of 100-Percent Rating for Adenocarcinoma of the Prostate The veteran's adenocarcinoma of the prostate, status post radiation therapy, is currently evaluated as 100-percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7528, malignant neoplasms of the genitourinary system. The Note to Diagnostic Code 7528 states that following cessation of treatment and absent any recurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. In this case, the 100-percent rating has remained in effect since October 26, 2002, so over five years. In addition, residuals of the veteran's prostate cancer, specifically erectile dysfunction and incontinence, have also been assigned separate ratings. In his December 2004 NOD, the veteran contends that his prostate cancer condition is static with no improvement; hence, he believes he should receive a 100-percent total and permanent rating. He believes his service-connected prostate cancer is severely disabling and unlikely to improve, and that therefore, the evaluation should be made permanent and total under the provisions of 38 C.F.R. § 3.327(b)(2), so that he will not have to undergo periodic review examinations. Due to the permanent nature of the disability, he further asserts eligibility for Dependents' Educational Assistance under Chapter 35 of the United States Code and eligibility for medical care under CHAMPVA, issues that have not been specifically addressed by the RO. Permanence of a disability is a prerequisite for any of these benefits. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the veteran may be considered in determining permanence. 38 C.F.R. § 3.340(b). Once permanence is established, a veteran need not undergo further VA examinations in order to retain his 100-percent disability rating for the permanent disability. 38 C.F.R. § 3.327(b)(2). Specifically, in service-connected cases, no periodic reexamination will be scheduled: (i) when the disability is established as static; (ii) when the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more; (iii) where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement; (iv) in cases of veterans over 55 years of age, except under unusual circumstances; (v) when the rating is a prescribed scheduled minimum rating; OR (vi) where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. Id. However, the Board emphasizes that pursuant to paragraph (a) § 3.327, the above list only provides "guidelines" for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations at any time in order to ensure that a disability is accurate rated. See, e.g., 38 C.F.R. § 3.344(a)-(c). A VA ultrasound conducted in December 2002 first demonstrated cancer of the prostate. His prostate specific antigen (PSA) level was 13.3 at that time. VA treatment records in 2003 document that the veteran underwent 42 radiation treatments for his prostate cancer. By October 2004, a VA genitourinary examiner noted his prostate cancer was under control, and the PSA level had dropped to 0.737. However, subsequent August 2005 and July 2006 VA genitourinary examinations recorded that the veteran's PSA levels had again risen to 1.100 and 1.220. The examiner (the same individual examined the veteran each time), opined that the cancer was no longer controlled. Of particular importance is the July 2006 report because the examiner emphasized that the cancer was still active, and the "prognosis is not good." Based on this medical evidence of prostate cancer which has not resolved despite radiation treatment, the RO has continued the veteran's 100-percent disability rating under Diagnostic Code 7528 throughout the entire appeal. In light of the above evidence, the Board finds that the veteran's 100-percent rating for adenocarcinoma of the prostate is permanent and static in character such that the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340(b). Concerning this, the Board finds the veteran has met several of the criteria under 38 C.F.R. § 3.327(b)(2) such that no periodic reexamination should be requested in the future. Specifically, the evidence of record demonstrates that he meets the following criteria: his prostate cancer has been static since December 2002 (section i); his prostate cancer has been without material improvement for nearly 5 years (section ii); and the veteran is over the age of 55 (he is now 65) (section iv). Thus, it is determined that the veteran's impairment is reasonably certain to continue throughout his life and that permanence of the veteran's total disability rating is shown to exist. 38 C.F.R. § 3.340(b). Therefore, the Board concludes the preponderance of the evidence supports the veteran's contention that his 100- percent rating for adenocarcinoma is permanent and static and nature. 38 U.S.C.A. § 5107(b). The derivative issues of eligibility for Dependents' Educational Assistance under Chapter 35 of the United States Code and eligibility for medical care under CHAMPVA are referred to the RO for further consideration. Higher Disability Rating for Incontinence Incontinence has been established as a secondary residual of the veteran's prostate cancer. His incontinence is rated as 10-percent disabling by analogy under 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7599-7512, cystitis, chronic. The rating criteria do not have a specific diagnostic code for incontinence. The disorder is, therefore, rated as analogous to cystitis because the functions affected, the anatomical localization, and the symptomatology are most closely analogous to these disorders. See 38 C.F.R. § 4.20. Cystitis is rated as voiding dysfunction. See Diagnostic Code 7512. The Board has also considered that 38 C.F.R. § 4.115a addresses renal dysfunction; however, in October 2004, August 2005, and July 2006, the VA examiner indicated that the veteran's renal insufficiency is secondary to nonservice-connected heart and hypertension problems. There is no indication his renal difficulties are a residual of his service-connected prostate cancer, such that the Board will not consider the ratings under renal dysfunction. The rating schedule for voiding dysfunction states that the particular condition will be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. When rating for urine leakage, a higher 20-percent evaluation is awarded when the disability requires the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating is in order when the disability requires the wearing of absorbent materials that must be changed two to four times per day. A maximum evaluation of 60 percent is warranted when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. When rating for urinary frequency, a higher 20-percent evaluation is awarded when the daytime voiding interval is between one and two hours, or; there is awakening to void three to four times per night. A maximum rating of 40 percent is in order when the daytime voiding interval is less than one hour, or; there is awakening to void five or more times per night. Id. When rating for obstructed voiding, there is no 20-percent rating. A maximum evaluation of 30 percent is awarded when there is urinary retention requiring intermittent or continuous catheterization. Id. The Board now turns to the evidence of record. As to obstructed voiding, VA genitourinary examination reports dated in March 2003, October 2004, August 2005, and June 2006 all indicate that the veteran has not had any catheterization due to any urinary retention issues. VA treatment records dated from 2002 to 2006 also support this conclusion. Thus, he is not entitled to a higher rating for obstructed voiding. However, resolving doubt in the veteran's favor, the Board finds that the evidence supports the maximum 40-percent rating, but no higher, for urinary frequency. 38 C.F.R. § 4.3. According to the VA examination reports cited above, the veteran reports consistent urgency and frequency of voiding. He reports a general lack of his ability to control his voiding. In fact, the veteran consistently indicates nighttime voiding of at least five times per night, indicative of a higher 40-percent rating. See October 2004 VA examination report ("frequent" nighttime voiding without any control); August 2005 VA examination report (six to seven times a night); and July 2006 VA examination report (seven to eight times a night). Overall, VA examinations provide evidence in support of the maximum 40-percent rating for urinary frequency. However, a rating beyond 40-percent is not warranted for urine leakage. There is no evidence of the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Although the veteran reported wearing pampers to the October 2004 examiner, he did not indicate how often he had to change them. More importantly, according to subsequent VA examination reports dated in August 2005 and July 2006, the veteran denied wearing pampers or other absorbent materials despite his frequent feelings of incontinence. Therefore, the evidence of record more closely approximates the criteria for a 40- percent rating, but no higher, based on urinary frequency alone. 38 C.F.R. § 4.7. Higher Disability Rating for Erectile Dysfunction The veteran's erectile dysfunction associated with his prostate cancer has been rated as zero-percent disabling by analogy under Diagnostic Code 7599-7522, penis, deformity, with loss of erectile power. 38 C.F.R. § 4.115b (2007). The Board notes that review of the regulations for evaluation of genitourinary conditions discloses no other diagnostic code that more appropriately reflects the disability at issue. Concerning this, all VA examinations and VA treatment records in the claims folder are negative for evidence of testicular atrophy. See also 38 C.F.R. § 4.115b, Diagnostic Code 7523. The disability will therefore continue to be rated by analogy under Diagnostic Code 7599-7522. 38 C.F.R. §§ 4.20, 4.27. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In order for the veteran to receive a higher 20 percent rating, Diagnostic Code 7522 requires physical deformity of the penis with loss of erectile power. A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to SMC for loss of use of a creative organ under 38 C.F.R. § 3.350(a). Upon review of the evidence, the veteran does not meet or nearly approximate the criteria for a compensable rating under Diagnostic Code 7599-7522. 38 C.F.R. § 4.7. Specifically, although VA genitourinary examinations dated in March 2003, October 2004, August 2005, and July 2006 confirm that he has erectile dysfunction as a residual of his radiation therapy for prostate cancer, on no occasion did the examiner find any evidence of physical deformity of his penis. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, the requirement under Diagnostic Code 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. Accordingly, the Board finds the preponderance of the evidence is against a compensable disability rating for the veteran's erectile dysfunction. 38 C.F.R. § 4.3. Also keep in mind the veteran is otherwise compensated for his erectile dysfunction. He has been found entitled to SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ. Higher Disability Rating for Diabetes Mellitus The veteran's diabetes mellitus disability is currently evaluated as 20-percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned when the disability requires insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted when the diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100- percent rating is warranted if the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. 38 C.F.R. § 4.119. The Court recently held that in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007) (emphasis added). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100-percent rating)). The evidence of record does not support a rating above the 20 percent currently assigned. 38 C.F.R. § 4.7. The veteran was first diagnosed with "uncontrolled diabetes mellitus" according to an August 2004 VA treatment record. He was immediately placed on insulin. Subsequent VA treatment records note that he was on insulin, oral hypoglycemic agents, and a restricted diabetic diet. VA examinations reports dated in October 2004, August 2005, and July 2006 also confirm that he was on insulin, oral hypoglycemic agents, and a restricted diabetic diet. However, there is no medical evidence of regulation of activities due to his diabetes mellitus. The veteran has been retired since the early 1990s, and is certainly restricted by his other numerous disabilities, especially his prostate cancer. However, there is simply no medical evidence of regulation of both occupational and recreational activities due to his diabetes mellitus alone, as addressed by the Court in Camacho, supra. Further, there is no history of ketoacidosis or hypoglycemic reactions that could entitle him to a higher rating. There is no indication or allegation that the veteran has been hospitalized due to his diabetes. VA treatment records do not indicate that he sees a diabetic care provider twice a month, as needed for a higher rating. Finally, VA examinations specifically indicate no evidence of weight loss. In sum, the VA examinations, VA treatment records, and the veteran's own statements do not provide evidence in support of a higher 40- percent disability rating for diabetes mellitus. Accordingly, absent medical evidence of regulation of activities, ketoacidosis, hospitalization, frequent treatment by his diabetic care provider, or progressive weight loss because of his diabetes mellitus, the preponderance of the evidence is against a disability rating greater than 20 percent. 38 C.F.R. § 4.3. Extra-Schedular Consideration It is undisputed that the combined symptoms of the disabilities on appeal would markedly interfere with any attempt at employment, if the veteran was not retired. See 38 C.F.R. § 3.321(b)(1). Nonetheless, since December 26, 2002, he has been in receipt of a 100-percent rating for his prostate cancer. Therefore, the issue of an extra-schedular rating is moot. Furthermore, the veteran is clearly adequately compensated for his disabilities by the regular rating schedule. VAOPGCPREC 6-96. See also 38 C.F.R. § 4.1 (disability ratings are based on the average impairment of earning capacity). ORDER The veteran's 100-percent rating for adenocarcinoma of the prostate, status post radiation therapy, is permanent and static in nature. An initial disability rating of 40 percent for incontinence is granted. An initial compensable disability rating for erectile dysfunction is denied. An initial disability rating higher than 20 percent for diabetes mellitus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs