Citation Nr: 1123389 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 06-23 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an evaluation for recurrent urethritis in excess of 20 percent from October 3, 2005, in excess of 40 percent from September 1, 2006, and in excess of 60 percent from January 3, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in part, increased the evaluation assigned to the Veteran's service-connected recurrent urethritis from noncompensable to 10 percent disabling, effective January 3, 2001. A subsequent June 2006 rating decision increased the evaluation for the Veteran's recurrent urethritis from 10 percent to 20 percent disabling, effective October 3, 2005. In September 2009, the Board, in part, increased the disability rating assigned to the Veteran's urethritis from January 3, 2001, through October 2, 2005, to 20 percent. The Board remanded the issue of entitlement to an evaluation in excess of 20 percent for recurrent urethritis on and after October 3, 2005, for further evidentiary development. A July 2010 supplemental statement of the case issued by the VA Appeals Management Center (AMC) continued the assigned 20 percent disability rating from October 3, 2005. The case was returned to the Board, and in October 2010 and November 2010 the Board remanded it for further development. A rating decision in April 2011 increased the rating assigned for the disability at issue from 20 percent to 40 percent, effective September 1, 2006. An evaluation of 60 percent was assigned from January 3, 2011. The case is again before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that, from October 3, 2005, to August 31, 2006, the Veteran's recurrent urethritis resulted in a need for wearing absorbent materials that must be changed 2 to 4 times per day, daytime voiding interval less than one hour, awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 2. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that, from September 1, 2006, to January 2, 2011, the Veteran's recurrent urethritis resulted in a need for the use of an appliance or a need for wearing absorbent materials which must be changed more than 4 times per day. 3. The Veteran's 60 percent evaluation for recurrent urethritis for the period from January 3, 2011, is the highest schedular evaluation assignable. CONCLUSION OF LAW The criteria for an evaluation for recurrent urethritis in excess of 20 percent from October 3, 2005, in excess of 40 percent from September 1, 2006, and in excess of 60 percent from January 3, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7512 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required 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. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. The VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In correspondence dated in January 2004, VA informed the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence. In August 2006 correspondence, VA informed the Veteran that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter in an SSOC dated in April 2011, and the appellant therefore has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA medical records, and the Veteran's statements in support of his claim. The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record. The report of a March 2007 VA examination was found by the September 2009 Board remand to be inadequate. VA conducted additional examinations in October 2009 and January 2011. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA reports obtained in this case are more than adequate, as they were predicated on a reading of the Veteran's claims file and medical records. They consider all of the pertinent evidence of record, to include the statements of the Veteran and the current examination results, and provide clinical findings which are pertinent to the criteria applicable for rating the Veteran's recurrent urethritis. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Thus, the Board must consider whether the veteran is entitled to staged ratings at any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's recurrent urethritis is evaluated as chronic cystitis under Diagnostic Code 7512. Diagnostic Code 7512 states that the disability should be rated as a voiding dysfunction. Voiding dysfunction is to be evaluated on the basis of urinary leakage, urinary frequency, or obstructed voiding. For urinary leakage, 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 warranted 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. For urinary frequency, 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. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. §§ 4.115a, 4.115b. The Veteran generally contends that he is entitled to a higher evaluation for recurrent urethritis. In July 2006 correspondence, he stated that he had to get up approximately 4/5 times a night (about every 2 hours) to urinate, and that the problem kept getting worse instead of better. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for an evaluation for recurrent urethritis in excess of 20 percent from October 3, 2005, in excess of 40 percent from September 1, 2006, and in excess of 60 percent from January 3, 2011. The Veteran's claims file contains numerous VA treatment records, which the Board has thoroughly reviewed. These records reflect ongoing treatment for recurrent urethritis. An October 3, 2005, urology outpatient treatment note provides that the Veteran had complaints of nocturia 3-4 times a night with occasional urgency. Subsequent VA treatment records dated through August 31, 2006, however, are simply negative for evidence of a need for wearing absorbent materials that must be changed 2 to 4 times per day, daytime voiding interval less than one hour, awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. §§ 4.115a, 4.115b. In fact, in March 2006 the Veteran reported that he voided 2 times nightly. Accordingly, an evaluation in excess of 20 percent is not warranted for the period from October 3, 2005, to August 31, 2006. A September 1, 2006, outpatient treatment note provides that the Veteran was voiding 5 times a night and never feeling empty. Subsequent VA treatment records dated through January 2, 2011, however, are simply negative for evidence of a need for the use of an appliance or a need for wearing absorbent materials which must be changed more than 4 times per day. 38 C.F.R. §§ 4.115a, 4.115b (2010). In fact, a September 2010 VA examination report for erectile dysfunction provides that the Veteran wore absorbent material that must be changed less than 2 times per day. An October 2009 VA examination report provides that the Veteran was not wearing any sanitary pads. Accordingly, an evaluation in excess of 40 percent is not warranted for the period from September 1, 2006, to January 2, 2011. The report of a January 3, 2011, VA genitourinary examination provides that the examiner reviewed the Veteran's claims file and medical records, and sets forth the relevant history and the Veteran's subjective complaints. The Veteran reported that he currently had urinary leakage with lack of control. After urination he would continue "going some more." He had had to wear protective absorbent material for over a year. Leakage was essentially continuous. He had to change appliance twice at night, then 2-3 times during the day. He averaged about 5 changes in a 24-hour period, and had to urinate about every hour or 2. He currently awoke about 3 or 4 times a night to urinate. The report notes that the Veteran's current treatment was absorbent material that must be changed more than 4 times a day. There was no history of obstructed voiding (urinary retention). The report sets forth the examination results in detail. The resulting diagnosis was recurrent urethritis, urinary incontinence requiring continuous use of absorbent appliances. The rating Schedule does not provide an evaluation in excess of 60 percent for recurrent urethritis. Accordingly, a higher schedular evaluation is not warranted for the period beginning January 3, 2011. 38 C.F.R. §§ 4.115a, 4.115b. The Board is aware of the Veteran's own assertions as to the severity of his recurrent urethritis. However, these contentions do not support his claim. A lay person is competent to describe the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A lay person, however, is not competent to provide an opinion requiring medical knowledge or a clinical examination by a medical professional, such as an opinion addressing whether a service-connected disability satisfies diagnostic criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Despite the Veteran's contentions, the medical record before the Board shows that the manifestations of his recurrent urethritis do not satisfy the criteria for an evaluation for recurrent urethritis in excess of 20 percent from October 3, 2005, in excess of 40 percent from September 1, 2006, and in excess of 60 percent from January 3, 2011. In this regard, the Board points out that the Veteran's July 2006 statement that he had to get up approximately 4/5 times a night (about every 2 hours) to urinate is not corroborated by his actual treatment records. As noted above, in October 2005 he reported nocturia 3-4 times a night. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). In addition, by its own terms the Veteran's statement was only approximate. As a result, his July 2006 assertion does not constitute evidence warranting a 40 percent evaluation for the period from October 3, 2005, to August 31, 2006. Turning to an extraschedular evaluation, 38 C.F.R. § 3.321(b)(1) (2010) provides that ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for a given disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996). However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). If so, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for the completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). In the present case, there is no indication in the objective record that the schedular rating criteria are inadequate to rate the Veteran's recurrent urethritis. There is no suggestion that the rating criteria do not reasonably describe the claimant's disability level and symptomatology. There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extraschedular consideration is required. In sum, the medical evidence demonstrates that the Veteran is not entitled to an evaluation for recurrent urethritis in excess of 20 percent from October 3, 2005, in excess of 40 percent from September 1, 2006, and in excess of 60 percent from January 3, 2011. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation for recurrent urethritis in excess of 20 percent from October 3, 2005, in excess of 40 percent from September 1, 2006, and in excess of 60 percent from January 3, 2011, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs