Citation Nr: 1134917 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 08-09 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 20 percent for post prostatectomy for adenocarcinoma of the prostate. 2. Entitlement to an initial compensable disability evaluation for erectile dysfunction secondary to status post prostatectomy for adenocarcinoma of the prostate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from July 1969 to July 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2007 by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). FINDINGS OF FACT 1. The residuals of the Veteran's post prostatectomy for adenocarcinoma of the prostate include a daytime voiding interval of less than an hour. 2. The Veteran has erectile dysfunction but deformity of the penis is not shown. CONCLUSION OF LAW 1. The criteria for an initial rating of 40 percent for post prostatectomy for adenocarcinoma of the prostate have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2010). 2. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.115b, Diagnostic Code 7522 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Duty to Notify and Assist The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. As to VA's duty to assist, VA has associated with the claims folder the Veteran's service treatment records and VA outpatient treatment records. The Veteran was also afforded a formal VA examinations in April 2007 and April 2009. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Ratings Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Post prostatectomy for adenocarcinoma of the prostate In the appealed June 2007 decision, the Veteran was service connected for post prostatectomy for adenocarcinoma of the prostate at a 20 percent disability rating, effective December 19, 2006, the date of the claim. The Veteran timely appealed. The Veteran's adenocarcinoma of the prostate has been evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. Under this code section, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Under 38 C.F.R. § 4.115a, diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The following section provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decisionmakers to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. In this case, there is no evidence or recurrence of active cancer shown or alleged. The predominant residuals of the Veteran's prostate cancer are limited to erectile dysfunction and voiding dysfunction, with voiding dysfunction shown to be manifested as frequency. Voiding dysfunction is classified as involving urine leakage, urinary frequency, or obstructive voiding. 38 C.F.R. § 4.115a. The criteria for a compensable rating of 20 percent for urinary leakage are the wearing of absorbent materials, which must be changed less than two times per day. A 40 percent rating is warranted for urinary leakage requiring the use of absorbent materials which must be changed two to four times a day. A 60 percent rating is warranted for urinary leakage requiring the use of absorbent materials which must be changed more than four times a day. 38 C.F.R. § 4.115a In addition, urinary frequency encompasses ratings ranging from 10 to 40 percent. A 20 percent rating contemplates a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating contemplates a daytime voiding interval of less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. According to the evidence of record, the Veteran was afforded a VA Compensation and Pension (C&P) examination in April 2007 where he reported no history of dysuria or hematuria. He stated he voids every 45 minutes during that daytime and one to two times at night. The Veteran reported "a little leakage, especially with coughing, sneezing, and other times for no specific reason. The Veteran does not wear pads because "he does not leak enough to wear a pad." Laboratory results revealed the Veteran's urinalysis was normal. See VA C&P examination, dated April 2007. VA treatment record from June 2008 reported the Veteran had minimal stress urinary incontinence, did not wear pads, and with no obstructive voiding symptoms. See VA treatment record, dated June 2008. In August 2008, the Veteran was afforded a personal hearing before a Decision Review Officer (DRO) at the RO. The Veteran testified that his daytime voiding was every thirty minutes to an hour approximately ten to fifteen times a day. The Veteran stated that at night, he wakes up about three to four times a night for voiding. The stated he does not wear absorbent materials but was planning on obtaining them. See DRO hearing transcript, dated August 2008. In April 2009, the Veteran underwent another VA C&P examination where no obstructive uropathy or difficulty voiding was reported. The Veteran stated he does have some incontinence that can occur spontaneously or sometimes when he strains. The Veteran stated he "occasionally wets himself but does not have to change clothes." The Veteran did not wear pads. He "gets up about two times at night to urinate and then urinates during the day about every two hours." There was no history of decreased stream, dysuria, urinary tract infections, hematuria, renal colic, or bladder stones. In addition, it was notes that there was no catheterization of the urinary tract since his surgery. See VA C&P examination, dated April 2009. A VA treatment record from June 2009 reported the Veteran continued to have minimal stress urinary incontinence and no other voiding complaints. See VA treatment record, dated June 2009. Applying the rating criteria to facts in this case, the evidence shows that from the date of his claim in December 2006, the Veteran's principal residual of his prostate cancer was daytime voiding every half an hour to two hours and at night one to four times per night. There was no active recurrence of the prostate cancer. There is no evidence that the Veteran required the use of absorbent pads. Additionally, the Veteran denied obstructed voiding and recurrent urinary tract infections. Based on the criteria for voiding dysfunction due to urinary leakage, frequency, or obstructive voiding, the evidence demonstrates symptoms compatible with a rating of 40 percent during the pendency of the appeal. The evidence does not show urinary leakage requiring the use of absorbent materials which must be changed two to four times a day or awakening to void five or more times per night, so neither a 40 or 60 percent evaluation is warranted due to voiding dysfunction. However, the Veteran stated on several occasions, during VA examinations, of a voiding interval of less than one hour. According the Veteran the benefit of the doubt, the Board finds that the evidence shows that a 40 percent rating is warranted for urinary frequency. Erectile dysfunction The Veteran seeks an initial compensable evaluation for erectile dysfunction. In June 2007 the RO granted service connection for erectile dysfunction and assigned a noncompensable evaluation by analogy under the provisions of Diagnostic Code 7522 of the Schedule for Rating Disabilities, 38 C.F.R. § 4.115b, effective December 19, 2006, the date of the claim. Where an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under Diagnostic Code 7522, penis deformity with loss of erectile power warrants a 20 percent disability rating. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that the June 2007 rating decision also granted entitlement to special monthly compensation (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, effective December 19, 2006. The Veteran's post service treatment records reveal that the Veteran has been diagnosed with erectile dysfunction and has been prescribed Viagra, Levitra, and Cialis to treat his erectile dysfunction. However, there is no indication in the Veteran's post service treatment records that the Veteran has any penile deformity. In April 2007, the Veteran was afforded a VA C&P examination. The Veteran was noted to have erectile dysfunction. He reported he had some "fullness, but not an erection sufficient for penetration." He stated that he has tried Viagra, Levitra, and the vacuum pump. The Veteran also complained of "some pain, which is deep to the lower end of the scar and radiates to the perineum. He may go a week without pain, and then he may have it eight to ten times in one day." A physical examination revealed the Veteran was a "normal male, both testes are down, There is [no] tenderness to palpation of the inguinal areas, testicles, or perineum. There is no penile deformity noted." See VA C&P examination, dated April 2007. At the April 2009 VA C&P examination, the Veteran reported erectile dysfunction and indicated that although he had desire he could not achieve erection sufficient for penetration or ejaculation. He stated he tired Viagra, Cialis, and the vacuum pump without success. Genitourinary examination revealed the Veteran had a normal penis and testicles were "descended and [were] firm in consistency, normal size." See VA C&P examination, dated April 2009. Based on the evidence of record, entitlement to an initial compensable evaluation for erectile dysfunction is not warranted. Although the Veteran has been consistently diagnosed with erectile dysfunction and has had loss of erectile power, at no point has the Veteran been noted to have any penile deformity. As such, entitlement to an initial compensable evaluation for erectile dysfunction is denied. In reaching the decision above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to an initial compensable evaluation, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has also considered assignment of an extraschedular evaluation. The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VA Gen. Coun. Prec. Op. 6-1996 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and it is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, supra. In this case, the rating schedule is adequate and the next higher evaluation is not warranted. It fully contemplates the described symptomatology and allows for higher levels of functional disability than that currently assigned should the condition worsen. In addition, the Board observes that there is no showing the disability results in marked interference with employment and has not required any frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. Therefore, no referral for extraschedular consideration is required. ORDER A 40 percent evaluation for post prostatectomy for adenocarcinoma of the prostate is warranted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial compensable disability evaluation for erectile dysfunction secondary to status post prostatectomy for adenocarcinoma of the prostate is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs