Citation Nr: 0810893 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 98-19 553A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to initial ratings higher than 10 percent prior to January 4, 2007, and higher than 40 percent from January 4, 2007, for nonspecific urethritis. 2. Entitlement to an increased rating for hypertension, currently rated 20 percent. 3. Entitlement to an initial compensable rating for service- connected headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from March 1976 to April 1983. This appeal comes to the Board of Veterans' Appeals (Board) from an October 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that granted service connection for nonspecific urethritis and assigned a noncompensable rating. The veteran also appealed a January 2000 rating decision that continued a 20 percent rating for hypertension. The Board remanded the claim for a higher initial rating for nonspecific urethritis in January 2000 and remanded that claim and the hypertension claim in July 2004. In the introduction portion of the July 2004 REMAND, the Board referred a claim for secondary service connection for erectile dysfunction. The claims file does not reflect any action on this referral. This matter is again referred for appropriate action. In July 2007, the RO assigned a 10 percent rating for nonspecific urethritis effective December 21, 1999, and a 40 percent rating effective January 4, 2007. The veteran has continued his appeal for higher initial ratings for nonspecific urethritis. The veteran requested service connection for prostatitis and cystitis. In a July 2007 rating decision, the RO added prostatitis and cystitis to the service-connected nonspecific urethritis disability. The Board has jurisdiction over the rating for headaches by virtue of the notice of disagreement filed in June 2000. Although the RO granted service connection for "hypertension with headaches," a VA physician has opined that these are separate and unrelated disabilities. The RO must therefore consider a separate rating for headaches. The issue of a separate rating for headaches has been added to the title page of this decision and is addressed in the remand portion of the decision below. This issue is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Nonspecific urethritis, prostatitis, and cystitis are manifested throughout the appeal period by urinary frequency of five or more times per night. 2. A need for absorbent materials that must be changed more than 4 times per day is not shown nor shown is a need for use of an appliance. 3. Hypertension has been manifested throughout the appeal period by diastolic blood pressure readings predominantly less than 120. CONCLUSIONS OF LAW 1. The criteria for a 40 percent schedular rating for nonspecific urethritis are met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7512 (2007). 2. The criteria for schedular rating greater than 40 percent for nonspecific urethritis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.3102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7512 (2007). 3. The criteria for schedular rating greater than 20 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b) (1). This notice must be provided prior to an initial unfavorable decision on a claim by VA. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Such notice was provided to the veteran in July 2007 as an attachment to an award letter. For an increased rating 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, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the disability 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. The claimant must also be notified that should an increase in disability be found a disability rating will be determined by applying relevant diagnostic codes that 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, 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 VA to obtain) that are relevant to establishing entitlement to increased compensation, 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. VA's duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such a timing error may instead be cured by issuance of a fully compliant notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for issuance of notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of notice followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA's duty to notify was satisfied by way of a letters sent to the veteran in October 2002, December 2004, and in February and June 2005 that address all four notice elements. The letters informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in her or his possession to VA. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not unfairly prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but VA also readjudicated the case by way of a supplemental statement of the case issued in July 2007, after the notice was provided. For these reasons, it is not unfairly prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that notice required by 38 U.S.C.A. § 5103(a) must be provided to a claimant before the initial unfavorable VA decision on a claim for VA benefits. In the present case, the unfavorable decisions that are the basis of this appeal were decided and appealed prior to the enactment of section 5103(a) in November 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial VA decision, then VA did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, medical examinations were offered and all pertinent medical records have been obtained to the extent possible. All necessary development has been accomplished and appellate review may proceed without unfair prejudice to the veteran. Neither the veteran nor his representative has identified, nor does the record otherwise indicate, that there is any additional existing evidence necessary for fair adjudication of the claims. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. The Court held that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In appeals of the initial rating assigned following a grant of service connection, "staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Non-specific Urethritis Non-specific urethritis is rated 10 percent disabling prior to January 4, 2007, and 40 percent from that date under Diagnostic Code 7512. Under that code, such a disorder is rated as a voiding dysfunction on the basis of urinary leakage, urinary frequency, or obstructed voiding, as explained below. For urinary leakage, a 20 percent evaluation is warranted when there is a need for wearing absorbent materials which must be changed less than 2 times per day. A 40 percent evaluation is warranted when there is a need for wearing absorbent materials that must be changed 2 to 4 times per day. A 60 percent evaluation is appropriate when the use of an appliance is required or when there is a need for wearing absorbent materials which must be changed more than 4 times per day. 38 C.F.R. §§ 4.115a, 4.115b (2007). For urinary frequency, daytime voiding interval between two and three hours, or; awakening at night to void two times per night warrants a 10 percent rating. Daytime voiding interval between one and two hours, or; awakening at night to void three to four times per night warrants a 20 percent rating. Daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. §§ 4.115a, 4.115b (2007). Obstructed voiding, with or without stricture disease requiring dilatation 1 to 2 times per year, warrants a noncompensable rating. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one of the following warrants a 10 percent rating: (1) post void residuals greater than 150 cc.; (2) uroflowmetry; marked diminished peak flow rate less than 10 cc/sec; (3) Recurrent urinary tract infections secondary to obstruction; or, (4) Stricture disease requiring periodic dilatation every 2 to 3 months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. §§ 4.115a, 4.115b (2007). The RO denied service connection for prostatitis and urethritis in a May 1997 rating decision. The veteran expressed disagreement with that rating decision and requested reconsideration, which led to the appealed October 1998 rating decision that granted service connection for nonspecific urethritis and rated it noncompensably from March 28, 1997. In August 1999, the veteran testified that he had night-time urinary frequency of greater than 5 times per night with itching on urination. In December 1999, T. A. Lucas, M.D., noted early and mildly obstructive benign prostatic hypertrophy. In May 2000, uroflometry indicated an early outlet obstruction. The veteran underwent a VA urology compensation examination in June 2000. He complained of urinary frequency and voiding problems. The urologist noted slight prostate inflammation and opined that the symptoms had not changed since 1976. The urologist felt that all symptoms shown represented the same entity rather than separate physiological processes. In a May 2001 addendum, the June 2000 VA examining urologist noted a claims file review and noted that the veteran had reported night-time urinary frequency of 5-times per night. The urologist then offered an opinion that sharply contrasts the earlier opinion. Whereas the urologist had earlier felt that separate physiological processes were not shown, the urologist now dissociated voiding problems from urethritis and felt that the voiding symptoms were related to or caused only by prostatitis or benign prostatic hypertrophy. An April 2002 private medical report notes pain in the urethra and low back. The physician associated the symptoms with prostatitis. A November 2002 VA genito-urinary compensation examination report reflects diagnoses of chronic intermittent urethritis with previous treatment of a lesion in the urethra; status post treatment for recurrent urinary tract infections; chronic prostatitis; benign prostatic hypertrophy; and, erectile dysfunction secondary to each of the above as well as to longstanding hypertension medication. The examiner noted (in contrast to the previous examiner) that the symptoms of urethritis, urinary tract infection, and prostatitis are similar and are interrelated. The examiner also felt that consideration should be given to granting service connection for chronic urinary tract infection and prostatitis. In January 2007, pursuant to Board remand instructions, two VA urologists examined the veteran and offered etiology opinions. The urologists linked all symptoms to active service. C. Ritenour, M.D., explained that the veteran had a poorly relaxing external urethral sphincter that put him at risk for repeat prostate inflammation and prostatitis. In a July 2007 rating decision, the RO added prostatitis and cystitis to the service-connected nonspecific urethritis disability and assigned a 10 percent rating effective December 21, 1999, and a 40 percent rating effective January 4, 2007, under Diagnostic Code 7512. From the above history, it is apparent that the nonspecific urethritis disability with prostatitis and cystitis is manifested by urinary frequency of five or more times per night. Comparing these symptoms with the criteria of the rating schedule, the Board finds that the criteria for a 40 percent rating are more nearly approximated during the entire appeal period. The Board also finds that the criteria for a rating greater than 40 percent are not met at any time during the appeal period. This is because a need for absorbent materials that must be changed more than 4 times per day is not shown nor is a need for use of an appliance shown. The history recited above reflects that urinary frequency of 5 or more times per night has not changed significantly during the appeal period. In August 1999, the veteran testified credibly and competently that he had night-time urinary frequency of 5 or more times per night. In June 2000, a VA urologist commented that the symptoms had not significantly changed since 1976. Later-dated evidence reflects that urinary frequency of 5 or more times per night has persisted. Thus, the evidence does not contain 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. Hence, staged ratings are unnecessary. Fenderson, supra. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim for a higher initial rating for the earlier portion of the appeal period only. A 40 percent rating for nonspecific urethritis will be granted for that portion of the appeal period prior to January 4, 2007. Fenderson, supra. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. A rating greater than 40 percent must be denied for any portion of the appeal period. Hypertension In May 1987, the RO granted service connection for "hypertension with headaches" and assigned a 10 percent rating under Diagnostic Code 7101. In June 1988, the RO assigned a 20 percent rating under Diagnostic Code 7101 for "hypertension with associated headaches." Diastolic blood pressure readings were 110 to 120 and chest X-rays showed heart-size to be in the upper range of normal. A November 1993 VA chest X-ray showed mild cardiomegaly with left ventricular hypertrophy. The veteran requested an increased rating for hypertension in December 1993; however, the RO denied that claim in March 1994. A March 1997 VA chest X-ray noted a normal cardiomediastinal silhouette with no cardiomegaly or mass. However, a July 1999 VA chest X-ray showed the heart to be at the upper limit of normal size. The veteran requested an increased rating in December 1999. He reported that post-traumatic stress disorder and hypertension were taking him away from his job. He reported worsening hypertension and submitted a January 1999 report from Montgomery Cardiovascular Associates, P.C. that notes that a treadmill test was terminated due to hypertension. The report also notes use of hydrochlorothiazide and Lipitor(r) for hypertension. In his substantive appeal, the veteran reported that blood pressure medication caused him to fall asleep without warning. An April 2001 VA outpatient treatment report notes that hypertension was not well controlled. A February 2002 VA X- ray showed a normal-sized heart. An April 2002 private medical report notes blood pressure of 154/112. A November 2002 private medical report notes that hypertension medication was changed to Norvasc(r) and the veteran's blood pressure reading was staying at 148/104. The physician increased the Norvasc(r) dosage. The report of a November 2002 VA cardiac compensation examination reflects the veteran's blood pressure reading was 170/111. A cardiovascular gallop and a right-sided renal artery bruit were detected. The assessment was long-standing history of hypertension, moderately elevated now, with no other symptom. The examiner felt that the headache disability should be dissociated from hypertension. A June 2005 VA hypertension compensation examination report notes that the veteran was taking Avalide(r) (hydrochlorothiazide) and nifedipine. The examiner noted a normal-sized heart on X-ray and felt that the veteran did not have left ventricular hypertrophy. VA outpatient treatment report dated in A January 2006 indicates that the veteran's blood pressure reading was 164/108 and earlier had been 134/95 and 154/100. The RO has assigned a 20 percent rating for hypertension with headaches under Diagnostic Code 7101. The Board will address an increased rating for hypertension without consideration of headaches in this decision. The relevant rating criteria for hypertension were revised effective January 12, 1998. Because the claim for an increase was received in December 1999, only the revised version of the rating schedule need be considered. Under the revised criteria of Diagnostic Code 7101, a 20 percent rating is warranted if the diastolic pressure is predominantly 110 or more, or if the systolic pressure is predominantly 200 or more. A 40 percent rating is warranted if the diastolic pressure is predominantly 120 or more. A 60 percent rating (the highest available rating) is warranted if the diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). At no time during the appeal period have the criteria for a 40 percent rating been more nearly approximated. Diastolic pressures, while difficult to control, have predominantly been below 120. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. A higher schedular rating for hypertension must be denied. Extraschedular Consideration 38 C.F.R. § 3.321(b) (2001) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the veteran has alleged or asserted that the schedular rating is inadequate, or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. If the matter is not referred, the Board must provide adequate reasons and bases for its decision to not so refer it. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, nonspecific urethritis and hypertension do not cause such difficulties as marked interference with employment or warrant frequent periods of hospitalization or otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. See also VAOPGCPREC. 6-96. ORDER For that portion of the appeal period prior to January 4, 2007, a 40 percent schedular rating for nonspecific urethritis is granted, subject to the laws and regulations governing payment of monetary benefits. A schedular rating greater than 40 percent for nonspecific urethritis is denied. A schedular rating greater than 20 percent for hypertension is denied. REMAND A November 2002 VA compensation examination report contains a medical opinion that dissociates the veteran's service- connected headaches from his service-connected hypertension. Headaches should therefore be rated separately. Because symptoms do not overlap, separate ratings for these two separate disabilities will not violate the rule against pyramiding set forth at 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14). Accordingly, the case is REMANDED for the following action: The AOJ should review all the relevant evidence and adjudicate the issue of a compensable rating for headaches. The veteran may be examined if necessary. If the AOJ finds that an additional VA examination is necessary in order to decide the claim, such examination should be scheduled and conducted. If the benefit is not granted, an appropriate supplemental statement of the case should be issued. The veteran and his representative should have an opportunity to respond to the supplemental statement of the case before the claims folder is returned to the Board for further appellate review. Thereafter, the case should be returned to the Board, if in order. The purpose of this remand is to comply with due process of law and to further develop the veteran's claim. The Board intimates no opinion as to the ultimate outcome of this case. No action by the veteran is required until he receives further notice. Failure to report for a scheduled VA medical examination could result in denial of the claim. 38 C.F.R. § 3.655 (a), (b). The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals