Citation Nr: 1304167	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  09-35 986	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an effective date earlier than May 1, 2008, for the award of a 30 percent rating for prostatitis and epididymitis with epididymal cysts.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Kessel, Counsel



INTRODUCTION

The Veteran had a period of honorable active military service from November 4, 1977 to November 3, 1983.  There was a period of dishonorable service from November 4, 1983 to March 2, 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In the March 2005 decision, the Veteran was awarded service connection for prostatitis and epididymitis.  The RO assigned a 10 percent disability rating effective May 18, 2004.  The Veteran appealed for a higher initial rating.  Thereafter, in the October 2008 decision, the RO added epididymal cysts to the characterization of the service-connected disability and increased the rating to 30 percent.  The 30 percent rating was made effective as of May 1, 2008.

The Veteran filed a notice of disagreement with the effective date of the 30 percent rating.  He contends that the rating should be effective from May 18, 2004-the effective date of the award of service connection.  Essentially, this aspect of disagreement was already for consideration in his initial appeal as the RO had evaluated the Veteran's disability by creating a "staged rating."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Another appeal was not necessary for the Board to address the Veteran's contention.

In any case, the Veteran has sufficiently limited his appeal to the issue that was certified to the Board as characterized on the title page.  Through submitted statements, he has indicated that he is not appealing the 30 percent rating, but solely contending that the rating period from May 18, 2004 through April 30, 2008 should also be rated as 30 percent rather than the initially assigned 10 percent.  Cf. AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the maximum available benefit).  Therefore, the Board finds that the proper issue on appeal is whether the Veteran is entitled to an effective date earlier than May 1, 2008, for the award of a 30 percent rating for prostatitis and epididymitis with epididymal cysts.


FINDING OF FACT

From May 18, 2004, through April 30, 2008, the Veteran's service-connected prostatitis and epididymitis with epididymal cysts required continuous intensive management.


CONCLUSION OF LAW

An effective date of May 18, 2004, for the award of a 30 percent rating for prostatitis and epididymitis with epididymal cysts, is warranted.  38 U.S.C.A. §§ 5110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7527 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the Veteran's claim is being granted to the fullest extent sought, any error in VA's duties to notify and/or assist him is non-prejudicial.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  The effective date of the award of service connection has already been set as May 18, 2004.  Thus, the salient question is when did entitlement arise, or when was it factually ascertainable that the increase to 30 percent occurred in this initial staged rating.  See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o); see also Fenderson, 12 Vet. App. at 126.

In assigning the initial 10 percent rating, the RO evaluated the Veteran's prostatitis and epididymitis under Diagnostic Code 7527 for "prostate gland injuries, infections, hypertrophy, postoperative residuals."  Under that diagnostic code, a disability is rated as voiding dysfunction or urinary tract infection, whichever is predominant.  38 C.F.R. § 4.115b, Diagnostic Code 7527.

The criteria for rating each are found in 38 C.F.R. § 4.115a, for "ratings of the genitourinary system-dysfunctions."  In this instance, the evidence reflects that the veteran's predominant problem was urinary tract infections as opposed to voiding dysfunction.  In this respect, there was no evidence of urine leakage or obstructed voiding.  Although there were some complaints of nocturia, the Veteran generally denied urinary frequency problems.  Therefore, the Board will consider the Veteran's claim as one involving urinary tract infection.  See 38 C.F.R. § 4.115b, Diagnostic Code 7527.

For urinary tract infection, a 10 percent rating is warranted for long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management.  A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management.  The disability may also be evaluated a renal dysfunction if there is poor renal function.  The record does not reflect renal dysfunction during the rating period in question.  Thus, evaluating the disability as urinary tract infection is appropriate.

The 30 percent rating was primarily based on a VA genitourinary examination that was conducted on May 1, 2008-the current effective date of the 30 percent rating.  A history of testicular pain, perineal pain, and cysts was noted.  Current treatment included Floxmax (tamsolusin) as an alpha-blocker, Proscar (finasteride) for benign prostate hyperplasia, and Vicodin (acetaminophen and hydrocodone) for pain.  He also had been prescribed Levaquin (levofloxacin) as an antibiotic for recurrent epididymitis and prostatitis.  The diagnoses included chronic prostatitis and chronic epididymitis with cysts resulting in testicular and pelvic floor pain.  Based on this information, the RO found that the Veteran's disability required continuous intensive management.

A review of the evidence dated prior May 1, 2008, reveals that the Veteran began regular treatment for his genitourinary problems through the VA Medical Center in Dallas, Texas, in 2003.  He was prescribed Levaquin to address infection as well as an anti-inflammatory.  An entry from May 2004 shows a complaint of epididymitis and cyst pain.  At that time, the Veteran was prescribed an alpha-blocker.  VA treatment records and examination reports reflect continued complaints of pain in the testicular area since that time.  Notably, in May 2005, pain medication was added to the Veteran's regular treatment plan.  

This evidence tends to show that the basis for the 30 percent award-continuous intensive management-was evident prior to May 1, 2008.  Since the award of service connection, the Veteran was regularly prescribed a regimen of alpha-blockers and medication to treat benign prostate hyperplasia.  Additionally, he was prescribed antibiotics by VA treatment providers when it was necessary to treat a recurrent infection.  Although intensive pain management was not provided until May 2005, the pain symptoms had persisted prior to that time.  While antibiotic treatment was intermittent at times, the remaining medication was continuously prescribed since May 2004.

In consideration of this evidence, the Board finds that the Veteran's disability required intensive management from May 18, 2004 through April 30, 2008, which more closely approximated "continuous" intensive management compared to "intermittent" intensive management.  See 38 C.F.R. §§ 4.7; 4.115a.  This is so, particularly when reasonable doubt is resolved in the Veteran's favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  In view of this finding, the Board concludes that the Veteran is entitled to an effective date earlier than May 1, 2008 for the award of a 30 percent rating for prostatitis and epididymitis with epididymal cysts.  An effective date of May 18, 2004 is warranted as this level of disability was factually ascertainable since the award of service connection.  See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o); see also Fenderson, 12 Vet. App. at 126.


ORDER

Entitlement to an effective date of May 18, 2004, for the award of a 30 percent rating for prostatitis and epididymitis with epididymal cysts, is granted, subject to laws and regulations governing the payment of monetary benefits.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs