Citation Nr: 1007125 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-00 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable disability rating for the residuals of prostate cancer, status post radical prostatectomy. 2. Entitlement to an initial compensable disability rating for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from September 1968 to June 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, inter alia, granted the Veteran's service connection claim for the residuals of prostate cancer and erectile dysfunction, both rated at 0 percent (noncompensable). FINDINGS OF FACT 1 The Veteran's service-connected residuals of prostate cancer, status post radical prostatectomy, does not manifest in renal dysfunction. Nor does it manifest in increased urinary frequency, obstructed voiding, or urine leakage requiring the wearing of absorbent materials. 2. The Veteran's erectile dysfunction does not manifest with penis deformity. CONCLUSIONS OF LAW 1. The criteria for compensable rating for the residuals of prostate cancer, status post radical prostatectomy, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.115a, 4.115b, Diagnostic Code 7528 (2009). 2. The criteria for compensable rating for erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.115a, 4.115b, Diagnostic Code 7522 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals limited 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). The duty to notify was accomplished by way of the VCAA letters from the agency of original jurisdiction (AOJ) to the Veteran dated in July 2004 and March 2005. 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 about the information and evidence not of record that was necessary to substantiate his initial claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the October and December 2006 letters from the AOJ further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if 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). With regard to the timing of his VCAA notice, the Board sees the AOJ did not provide the Veteran with all general VCAA notice prior to the December 2004 determination on appeal. But in Pelegrini II, the U.S. Court of Appeals for Veterans Claims (Court) clarified that in these situations the VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has 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. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, 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, the AOJ provided additional Dingess notice in October and December 2006, but did not go back and readjudicate the claim by way of a subsequent SSOC. So in essence, based on the above caselaw, the timing defect of the notice was not rectified. Regardless, the Court also recently held the failure of the claimant to submit additional evidence following proper notification may constitute a waiver of readjudication or render the error harmless. Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007). Here, the Veteran did not submit any additional new pertinent evidence in response to the October and December 2006 Dingess notice letters. Therefore, the absence of a subsequent SSOC after these notices is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. Medrano, 21 Vet. App. at 173. As such, the evidence does not show, nor has the Veteran argued, prejudicial error in the timing of his VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). However, with regard to content, it is that noted the claim at issue stems from an initial rating assignment. In this situation, the Court has held that an appellant's filing of a notice of disagreement (NOD) regarding an initial disability rating or 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. And if he did not receive this notice, for whatever reason, it is VA's obligation to explain why this is not prejudicial error, i.e., harmless. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Notwithstanding its holding in Dunlap, the Court most recently clarified in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), that where a service connection claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream initial rating and effective date elements. The Court added that its decision was consistent with its prior decisions in Dingess and Dunlap, supra . In this regard, the Court emphasized its previous holding in Dingess that "once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. Thereafter, once a NOD has been filed, only the notice requirements for rating decisions and SOCs described within 38 U.S.C. §§ 5104, 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements ...." Id. Applying the above analysis to the present case, the Veteran does not contend, nor does the evidence show, any notification deficiencies with respect to content that have resulted in prejudice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In fact, with respect to content, the AOJ actually provided the Veteran with downstream Dingess notice in October and December 2006 letters pertaining to the disability rating and effective date elements of his claims. Further, after the Veteran filed an NOD as to a higher initial rating for his claims, the additional notice requirements described within 38 U.S.C. §§ 5104, 7105 were met by the November 2005 SOC and subsequent October 2006 SSOC. Specifically, these documents provided the Veteran with a summary of the pertinent evidence as to his compensable initial rating claims, a citation to the pertinent laws and regulations governing a higher rating for his compensable initial rating claims, and a summary of the reasons and bases for the AOJ's decision to deny a higher rating for his the residuals of prostate cancer, status post radical prostatectomy, and secondary erectile dysfunction. Therefore, the Veteran has not met his burden of establishing any prejudice as to notice provided for the downstream initial rating and effective date elements of his claim, such that there is no prejudicial error in the content of VCAA notice. In addition to notification, the VA is required to assist the Veteran in finding evidence to support his claim. See 38 U.S.C.A. § 5103A. The AOJ has secured a VA medical examination, and private medical evidence as identified by the Veteran. The Veteran has submitted personal statements, and private medical evidence. The Veteran has not provided authorization for the VA to obtain any additional private medical records, nor has he indicated that such records exist. The Veteran's representative has requested a contemporary VA medical examination in the January 2010 Informal Brief Of Appellant In Appealed Case. The Board acknowledges that the Veteran's VA medical examination was conducted in October 2005, almost 5 years ago. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.327(a); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("[W]here the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened). In this case, after the October 2005 VA medical examination, the Veteran submitted additional private treatment records from Dr. Locke and statements on April 2006, and October 2005. The Veteran's private treatment records from Dr. Locke are primarily duplicates of records previously provided. There are new records which were not available to the VA examiner dated in July 2004, and July 2005. However, these new records merely state that the Veteran is "doing extremely well," and is "having no problems." As such, these records do not indicate a worsening of the Veteran's service-connected disorder, if anything, they support the conclusion that his conditions have improved or remained stable. The Veteran's statement of October 2005 indicates that the Veteran was inspired to request an increased rating when he saw another Veteran who was receiving a benefit for an "unnoticeable" disability. The Veteran also indicated that he is having some leakage and "no sexual function at all." These statements also do not indicate a worsening of the Veteran's condition. As such, neither the Veteran, nor his representative have presented evidence that the Veteran's service-connected disabilities have worsened in the interim. Finally, in April the Veteran has indicated that he was not seen by a medical doctor, rather a "Vanderbilt medical student." As such, the Veteran appears to be challenging the qualifications of his VA medical examiner. The Board notes that the Court has ruled that medical evidence is not limited to that which is provided by doctors. Cox v. Nicholson, 20 Vet. App. 563 (2007) (holding that an examination required under 38 U.S.C.A. § 5103A may be conducted by a nurse practitioner, rather than a physician). Even so, the Board notes that the October 2005 VA medical examination was noted as being provided by a M.D. (medical doctor). The Veteran has presented no evidence to contradict the conclusions of the VA medical examiners opinion, or to show that the VA medical examiner was not competent to render the opinion provided. Therefore, the Board concludes that the duty to assist the Veteran in gathering information to advance his claim has been met. 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 (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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 residuals of prostate cancer, status post radical prostatectomy and erectile dysfunction, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection (in this case June 25, 2004) until the present. 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. Analysis- Compensable Initial Disability Rating for the Residuals of Prostate Cancer Service connection was granted for the Veteran's residuals of prostate cancer, status post radical prostatectomy, and assigned a noncompensable (0 percent) rating under 38 C.F.R. § 4.115b, Diagnostic Code 7528 (for malignant neoplasms of the genitor-urinary system) in December 2004, with an effective date of June 25, 2004. The Veteran currently seeks a compensable rating for the residuals of prostate cancer. Under Diagnostic Code 7528, if there has been no local reoccurrence or metastasis following surgical, X-ray, actineo-plastic chemotherapy or other therapeutic procedure, the disability should be rated on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran was apparently diagnosed with neoplasia of the prostate in April 1999, and was treated with a prostatectomy in May 1999. Since that time, there is no medical evidence of a recurrence or metastasis of his neoplasia; therefore, it is appropriate to rate the Veteran's disorder under the rating criteria for voiding dysfunction or renal dysfunction. Renal dysfunction is rated as noncompensable if there is albumin and casts with a history of acute nephritis; or there is hypertension at the noncompensable level under Diagnostic Code 7101. A 30 percent rating is warranted if there is constant or recurring albumin with hyaline and granular casts or red blood cells; or transient or slight edema; or hypertension that is at least 10 percent disabling. A 60 percent rating is warranted if there is constant albuminuria with some edema; or a definite decrease in kidney function; or hypertension that is at least 40 percent disabling. An 80 percent rating is warranted if there is persistent edema and albuminuria with BUN 40 to 80mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted if the disorder requires regular dialysis, precludes more than sedentary activity from one of the following: persistent edema and abluminuria; or BUN more than 80mg%; or, creatine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The October 2005 VA examination, however, did not find any signs of renal dysfunction, indicating that the Veteran "has had no evidence of disease since that time." Furthermore, the private treatment records do not provide any evidence of renal dysfunction, so there is no basis for assigning the Veteran a rating under the criteria for renal dysfunction. As such the Board will review the Veteran's disorder under the rating criteria for voiding dysfunction. Under 38 C.F.R. § 4.115a, voiding dysfunction is rated for particular conditions such as continual urine leakage, urinary frequency, or obstructed voiding. Under 38 C.F.R. § 4.115a, continual urine leakage rated at: 20 percent when the disability requires the wearing of absorbent materials which must be changed less than 2 times per day, 40 percent when the disability requires the wearing of absorbent materials which must be changed 2-4 times per day, 60 percent when the disability requires the wearing of absorbent materials which must be changed more than 4 times per day. Concerning the criteria for rating continual urine leakage, shortly after his prostatectomy in June 1999, the private treatment records provided by J. Locke, M.D., indicate that the Veteran was experiencing some incontinence which was "improving daily" and that the Veteran was only using a "small pad once a day." Since that time, particularly during the relevant appeal period, there is no private medical evidence that the Veteran is wearing absorbent materials to manage any incontinence. The Veteran has also indicated that he does have some leakage when he sits on something hard, yawns without catching it, or at times when he kneels down. Finally, the October 2005 VA medical examination indicated that, "[the Veteran] does have leakage of urine on a daily basis." However, "[i]t is a small amount," and "[h]e does not wear a pad." As such, the evidence of record indicates that the Veteran's disability does not require the wearing of absorbent materials, and so a compensable rating is not warranted for continual urine leakage. Under 38 C.F.R. § 4.115a, urinary frequency is rated at: 10 percent for daytime voiding interval between two and three hours, or awakening to void 2 times per night; 20 percent for daytime voiding interval between one and two hours, or; awakening to void three to four times per night; 40 percent evaluation for daytime voiding interval less than one hour, or; awakening to void 5 or more times per night. Concerning the criteria for rating urinary frequency, the private treatment records provided by Dr. Locke indicate that the Veteran "has no incontinence whatsoever," and do not note any history of problems with urinary frequency. The VA medical examination also did not reveal any heightened urinary frequency. As there is no evidence of increased urinary frequency either during the day or at night, a compensable rating for urinary frequency is not appropriate for the appeal period. Under 38 C.F.R. § 4.115a, obstructed voiding is rated at: 10 percent for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 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; or 4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted with urinary retention requiring intermittent or continuous catheterization. Concerning the criteria for rating obstructed voiding, the private treatment records provided by Dr. Locke indicate that the Veteran is "voiding easily with excellent stream and excellent control." The October 2005 VA medical examination indicated that the Veteran has "a good stream of urine." As there is no evidence of obstructed voiding, a compensable rating for obstructive voiding is not warranted for the appeal period. Overall, there is no evidence of record, either medical or otherwise, to indicate that the Veteran's residuals of prostate cancer, status post radical prostatectomy, causes him to experience any residuals which are compensable under the Rating Schedule. As such, the Veteran's residuals of prostate cancer have been properly rated as noncompensable for the entire appeal period. The Board adds that it does not find that the Veteran's service-connected residuals of prostate cancer, status post radical prostatectomy, should be increased for any other separate period based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 125-26. Analysis- Compensable Initial Disability Rating for Erectile Dysfunction Service connection was granted for the Veteran's erectile dysfunction as secondary to the residuals of prostate cancer, status post radical prostatectomy, and assigned a noncompensable (0 percent) rating under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7522 (for deformity of the penis with loss of erectile power) in December 2004, with an effective date of June 25, 2004. There is no Diagnostic Code provided for erectile dysfunction. When an unlisted condition is encountered, it will be permissible to rate 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. The Board can find no other diagnostic code that would be more appropriate in rating the Veteran's disability. There is no evidence that he has undergone removal of half or more of his penis, or that glans have been removed, such that would warrant consideration under Diagnostic Codes 7520 or 7521, respectively. Therefore, Diagnostic Code 7522 is most appropriate to rate this disability. As the Veteran's disability is limited to his erectile dysfunction, the use of Diagnostic Code 7522 is appropriate in this case. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The Veteran currently seeks a compensable rating for erectile dysfunction. Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. Thus, two distinct criteria are required for a compensable rating: loss of erectile power and deformity of the penis. The VA medical examiner noted that an examination of the Veteran revealed "normal external male genitalia." Furthermore, the private treatment records provided by Dr. Locke also indicate that the Veteran has "normal external genitalia." As such, there is no evidence that the Veteran has experienced any penile deformity. Therefore, the Veteran's erectile dysfunction is properly rated as noncompensable under 38 C.F.R. § 4.115b Diagnostic Code 7522, as it is not coupled with any identifiable deformity. A rating of 0 percent is assigned when the Rating Schedule does not provide a 0 percent evaluation for a diagnostic code and the requirements for a compensable evaluation have not been met, as is the case here. 38 C.F.R. § 4.31. The Veteran should understand that the principal purpose and policy for awards of disability compensation is to partially compensate a Veteran for disabilities which impair earning capacity. See 38 C.F.R. § 4.1. In denying the Veteran a compensable evaluation for erectile dysfunction, the Board notes that the December 2004 rating decision awarded him special monthly compensation (SMC) for loss of use of a creative organ under 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a)(1)(ii). As the Veteran has been granted SMC for his erectile dysfunction, this matter will not be further addressed by the Board. In conclusion, the Veteran's erectile dysfunction has been properly rated as noncompensable for the entire appeal period. The Board adds that it does not find that the Veteran's service-connected erectile dysfunction should be increased for any other separate period based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 125-26. Extra-Schedular Consideration The Court recently clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). First, the AOJ or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). There is no evidence of record to indicate that the Veteran has experienced any lost productivity due either to his residuals of prostate cancer, status post radical prostatectomy, or his erectile dysfunction. Finally, there is also no evidence of exceptional or unusual circumstances, such as frequent hospitalization during the appeal period, to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. In reaching this conclusion, the Board notes that, 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. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial compensable rating for residuals of a prostate cancer, status post radical prostatectomy, is denied. An initial compensable rating for erectile dysfunction is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs