Citation Nr: 0810176 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 07-08 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a rating higher than 20 percent for prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from November 1953 to May 1958 and from October 1958 to October 1962. This appeal to the Board of Veterans' Appeals (Board) is from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In March 2008, the Board granted the veteran's motion to advanced his case on the docket because of his age. 38 U.S.C.A. § 7107; 38 C.F.R. § 20.900(c). He submitted additional medical evidence with his motion, but he did not waive his right to have the RO - as opposed to the Board, initially consider this additional evidence. 38 C.F.R. § 20.1304(c). However, this evidence does not pertain to his claim at issue, for a higher rating for his prostatitis. Therefore, a waiver is not required and the Board may go ahead and decide his appeal without first remanding this case to the RO for consideration of this additional medical evidence. This is also especially true since the Board is granting a higher rating for the prostatitis, so no need to further delaying doing this. FINDING OF FACT The veteran changes his absorbent materials more than seven to eight times per day. CONCLUSION OF LAW The criteria are met for a higher 60 percent rating for the prostatitis. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.115a, 4.115b, Diagnostic Code DC 7527 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in May 2006, the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also note the RO issued that VCAA notice letter prior to initially adjudicating the claim, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). As well, that letter specifically asked the veteran to provide any evidence in his possession pertaining to his claim. Id. at 120-21. In any event, VA's Office of General Counsel has indicated requiring VA include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and, therefore, not binding on VA. See Pelegrini II; VAOPGCPREC 1-2004 (Feb. 24, 2004) (OGC discussed this in response to the holding in Pelegrini v. Principi, 17 Vet. App. 183 (2002) (Pelegrini I), but the Court used basically the same language in Pelegrini II, so it is equally applicable). The Board is bound by the precedent opinions of VA's General Counsel, as the Chief Legal Officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, because the Vasquez-Flores' decision was not issued until very recently, the veteran has not received VCAA notice specifically tailored to comply with it. And in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court held that this type of notice error is presumed prejudicial and that it is incumbent upon VA, not the veteran, to show why the error is nonprejudicial, i.e., harmless. VA can show the error is harmless by demonstrating why it does not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05-0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the veteran's claim is being granted, regardless. Furthermore, the diagnostic criteria used to determine the relative severity of his prostatitis were provided to him in the February 2007 statement of the case (SOC). A reasonable person could be expected to read and understand these criteria, and that evidence to show his disability met the requirements for a higher rating was needed for an increase to be granted. After receiving notice of the rating criteria, his claim was readjudicated in the June 2007 supplemental SOC (SSOC), after additional evidence was received. So the readjudication effectively "cured" the inadequate notice or lack of notice prior to the initial adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). If there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). That is to say, if there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (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; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. During his September 2007 hearing, for example, the veteran and his representative made arguments addressing the specific requirements for receiving a higher rating for his prostatitis, including in terms of having to change his absorbent pads at least seven to eight times per day. So they are well aware of the type symptoms needed to obtain a higher rating, including insofar as their relative frequency. It equally deserves mentioning that, in May 2006 and August 2007 letters, the veteran was informed of the disability rating and downstream effective date elements of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And as for the duty to assist, the RO obtained the veteran's service medical records and VA medical records, including the reports of his VA compensation examinations to assess the severity of his prostatitis. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Increased-Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon 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, 4.20 (2006). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). If two evaluations are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required 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. A recent Court decision held that, in determining the present level of a disability for any increased-evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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, irrespective of whether the veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran's prostatitis is currently evaluated as 20- percent disabling under DC 7527, for prostate gland injuries, infections, hypertrophy, and postoperative residuals. 38 C.F.R. § 4.115b. Under DC 7527, the rater is instructed to evaluate the disability as either voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b. A 20 percent evaluation is warranted for voiding dysfunction when the disability requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent evaluation is warranted when the disability requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent evaluation is warranted when the disability requires use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. The rating criteria for voiding dysfunction also state that the condition can be rated under the criteria for urinary frequency or obstructed voiding. A 20 percent evaluation is warranted for urinary frequency when the daytime voiding interval is between one and two hours, or; when the veteran awakens to void three to four times per night. A 40 percent evaluation is warranted when the daytime voiding interval is less than one hour, or; the veteran awakens to void five or more times per night. 38 C.F.R. § 4.115a. There are criteria for a 10 percent evaluation for obstructed voiding, but the veteran's chronic prostatitis is already evaluated higher - as 20 percent disabling. The next higher 30 percent rating is warranted when there is urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. A 30 percent evaluation is warranted for urinary tract infections if there are recurrent symptomatic infections requiring drainage or frequent hospitalization (more than two times a year) or requiring continuous intensive management. 38 C.F.R. § 4.115a. The medical evidence on file for consideration shows the veteran's disability is predominantly manifested by urinary frequency, leakage, and incontinence, rather than urinary tract infections. Indeed, the vast majority of his hearing testimony concerned his need to change his absorbent pads with the level of frequency required for a higher rating. During his April 2005 VA genitourinary examination, it was noted that he had had three or more urinary tract infections during the previous 12 months, and that he was hospitalized three or more times for treatment of the infections. Drainage and intensive treatment were not required. During his more recent June 2006 VA examination, a history of urinary tract infections was not noted, and there was no evidence he had been hospitalized because of urinary tract infections. Based upon his descriptions of his symptoms and the large amount of medical evidence chronicling his urinary frequency and leakage, the Board will address the criteria for voiding dysfunction as opposed to urinary tract infections. The Court has held that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case", Butts v. Brown, 5 Vet. App. 532, 538 (1993), and that one diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 6280629 (1992). Lay hearing testimony, such as that the veteran provided under oath during his September 2007 hearing, is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). That is to say, he is competent to provide evidence of how often he must void, as well as how many times per day he must change his absorbent materials. The veteran testified that his incontinence had increased dramatically since the November 2006 rating decision at issue. He said that he had started wearing diapers at night and approximated that he went through as many as fifteen absorbent pads in a 24-hour period because he was unaware of when he was urinating. He estimated that he changed his pads at least seven or eight times per day, excluding night time. He further testified that he awoke five to seven times per night to urinate, and that during the day he urinated about once every hour. He said his doctors discouraged catheterization for the time being, but reserved it as a possibility for future treatment. The veteran's VA treatment records confirm he is experiencing increasing urinary frequency and leakage. A May 2007 record, for example, shows he urinates hourly during the day and awakes four times a night to urinate. After urinating, he has a 143 cc post-void residual. In April 2007, he reported urinating 20 times a day, three to four times per night, and complained of pain in his supra pubic area. In his November 2006 notice of disagreement (NOD), the veteran stated that his doctor recommended against catheterization. He also stated that he had to get up six times a night to urinate, and that he wore absorbent pads. In October 2006, he reported urinating four times a night. When examined by VA in June 2006, the veteran was taking prescription Flomax. He complained of urinating three to four times per night and having wetness after returning to bed. He wore diapers at night and absorbent pads during the day. He had pelvic pain, urinary urgency, hesitancy, weak or intermittent stream, straining, dribbling, urine retention, hematuria, and his voiding interval was 1 to 2 hours. The examiner indicated the veteran's condition was getting "progressively worse." He had leakage after urination and nocturnal leakage. The examiner stated the veteran changed his absorbent materials two or less times per day. The examiner diagnosed chronic prostatitis. An April 2005 VA examination revealed the veteran awoke twice per night to urinate. His voiding interval was 1 to 2 hours, and he had occasional hesitancy, dysuria, dribbling, and weak stream. He did not strain to urinate or have urine retention. He did not have urinary leakage. Absorbent materials were not mentioned at that examination. This medical evidence, on balance, shows the veteran's condition has worsened over time. In April 2005, he did not have urine leakage or retention, but by his June 2006 VA examination he did have these symptoms. Additionally, he began wearing both diapers and absorbent materials. While the June 2006 examination report states that he changed his absorbent materials only two or less times per day, he testified over a year later during his September 2007 hearing that he changed them far more - at least seven or eight times per day. Taking into account the fact that the evidence shows a progressive worsening of his condition, the Board finds that his lay observation that he must change his absorbent materials as often as seven or eight times per day credible and consistent with the medical evidence of record, which states that his voiding interval is one to two hours. The veteran's disability, therefore, meets the requirements for a higher 60 percent evaluation when his disability is rated as voiding dysfunction. 38 C.F.R. § 4.115a. He is not entitled to a higher schedular evaluation because 60 percent is the highest available evaluation under the criteria for voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infection. The evidence, at most, supports assigning a 60 percent rating. 38 C.F.R. § 4.7. Moreover, because the veteran's prostatitis has not been more than 60- percent disabling at any time since his claim for a higher rating, the Board may not "staged" his rating because this represents his maximum level of disability during the relevant time period at issue. Hart v. Mansfield, No. 05- 2424 (U.S. Vet. App. Nov. 19, 2007), For these reasons and bases, the evidence supports a higher 60 percent, but no greater, rating for the prostatitis. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in 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 also VAOPGCPREC 6- 96; Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A higher 60 percent rating is granted for the prostatitis, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs