Citation Nr: 0812430 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-21 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement. 2. Entitlement to an initial compensable evaluation for erectile dysfunction. 3. Entitlement to an initial compensable evaluation for a scar. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The veteran served on active duty from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In his December 2004 notice of disagreement, the veteran alleged that he was unemployable due to his service-connected disabilities. Accordingly, the matter of entitlement to a total disability rating based upon individual unemployability is referred to the RO for the appropriate development. The issues of entitlement to initial compensable evaluations for erectile dysfunction and a scar are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement have not required the wearing of absorbent materials; resulted in daytime voiding intervals of less than one hour; awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115, Diagnostic Code 7512 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007), are examined. First, VA has a duty to indicate which portion of information should be provided by the claimant, and which portion VA will try to obtain on the claimant's behalf, which was accomplished by July 2003 and May 2006 letters, with respect to the initial claim of entitlement to service connection and the subsequent claim of entitlement to an increased disability rating. The May 2006 letter also indicated that in determining a disability rating, the RO considered evidence regarding nature and symptoms of the condition, severity and duration of the symptoms, and the impact of the condition and symptoms on employment. The evidence that might support a claim for an increased rating was listed. The veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. In any event, the Board notes that the United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) clarified VA's notice obligations in increased rating claims. As the instant appeal originates from the grant of service connection for the disability at issue. Consequently, Vazquez-Flores is inapplicable. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a claim of service connection, 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 the elements of the claim as reasonably contemplated by the application. Id. at 484. Despite any inadequate notice provided to the appellant, no prejudice results in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Particularly, the veteran has been afforded the information necessary to advance any contention by means of the July 2003 and May 2006 letters. As such, the veteran was aware and effectively notified of information and evidence needed to substantiate and complete his claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Because a preponderance of the evidence is against the claim, any potentially contested issue regarding a downstream element is rendered moot. Again, the veteran is not prejudiced by the Board's consideration of the pending issues. The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004), continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the veteran received notice in July 2003, prior to the adjudication of the matter in January 2004. It is further noted that in order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice must also request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). See Pelegrini, 18 Vet. App. at 121. In this case, this principle has been fulfilled by the July 2003 and May 2006 letters. Next, VCAA requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, 38 C.F.R. § 3.159(c), which includes providing a medical examination when such is necessary to make a decision on the claim. The record contains the veteran's service medical records, VA outpatient reports, private treatment records from Joseph A. Salisz, M.D. an Michigan Department of Career Development, and a VA examination report dated in November 2003. Notably, the veteran has not identified any further outstanding and relevant evidence in response to the May 2006 VCAA letter. Based on the foregoing, VA satisfied its duties to the veteran. Analysis 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 two evaluations are potentially applicable, the higher evaluation 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. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability 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 the veteran, as well as the entire history of the veteran's disability in reaching its decision raised them. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's service-connected residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement have been rated by analogy to chronic cystitis and assigned an initial disability rating of 20 percent. According to Diagnostic Code 7512, chronic cystitis is to be rated as voiding dysfunction. 38 C.F.R. § 4.115b. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. For urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence) a 20 percent rating is assignable for requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is assignable for requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is assignable for requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. For urinary frequency a 10 percent rating is assignable for daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is assignable for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is assignable for daytime voiding interval less than one hour, or; awakening to void five or more times per night. For obstructed voiding, a 10 percent rating is assignable for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of (1) Post void residuals greater than 150 cc; (2) Uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is assignable for urinary retention requiring intermittent or continuous catheterization. In light of the aforementioned rating criteria, in order to be entitled to a disability rating in excess of 20 percent the veteran's residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement would have to require the wearing of absorbent materials, which must be changed 2 to 4 times per day; result in daytime voiding intervals of less than one hour; nighttime voiding five or more times per night; or urinary retention requiring intermittent or continuous catheterization. In November 2003, the veteran was afforded a VA examination. The veteran reported daytime urination of eight to ten times a day. Nighttime urination was once a night. After voiding, the veteran occasionally dribbled a few drops of urine. The veteran was not using any absorbent materials. He did not have a history of frequent urinary tract infections, urinary retention, or urethral dilations. Since his discharge from service, the veteran has not undergone any additional urogenital surgeries. As noted, the veteran's residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement have not required the wearing of absorbent materials or any surgical procedures, since his discharge from service. Accordingly, the rating criteria pertaining to urine leakage and obstructed voiding are not applicable. As to urinary frequency, upon VA examination the veteran submitted that he voided eight to ten times during the day and he awoke once a night to void. The next available schedular rating of 40 percent based on urinary frequency is not warranted because there is no evidence of daytime voiding intervals of less than one hour, or awakening to void five or more times per night. The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). There is no indication in the record that the schedular evaluations are inadequate to evaluate the average industrial impairment due to the disability at issue. The veteran has not required frequent hospitalization for his residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement and the manifestations of this disability are those contemplated by the schedular criteria. Therefore, referral of this case for extra- schedular consideration is not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In conclusion, the preponderance of the evidence is against an initial disability rating in excess of 20 percent for the veteran's service-connected residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement. ORDER Entitlement to an initial disability rating in excess of 20 percent for residuals of suprapubic exploratory surgery with cystocopy tube and urethral catheter placement is denied. REMAND The Board notes that the veteran asserted in his December 2004 notice of disagreement that he disagreed with "the level of benefits in the determination sent to me on January 21, 2004." The January 2004 rating decision granted entitlement to service connection for residuals of suprapubic exploratory surgery with cystocopy tube urethral catheter placement and held that they were 20 percent disabling. The RO also held that service connection was warranted for erectile dysfunction and a scar. Although both the erectile dysfunction and the scar were held to be noncompensable, the veteran was also awarded special monthly compensation for the loss of use of a creative organ. Notwithstanding, in March 2006, the veteran's representative submitted that the veteran had disagreed with all the disability ratings relating to his genitourinary condition. In this respect, there is no record that a statement of the case was issued to the veteran concerning the issues of entitlement to initial compensable disability ratings for erectile dysfunction and a scar. Accordingly, the Board is required to remand these issues to the RO for the issuance of a statement of the case. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: With regards to the issues of entitlement to issues of entitlement to initial compensable disability ratings for erectile dysfunction and a scar, the RO should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case so that the veteran and his representative may have the opportunity to complete an appeal on these issues (if he so desires) by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs