Citation Nr: 1304902 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-12 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date prior to January 26, 2007, for a compensable rating for residuals of a radical retropubic prostatectomy and bilateral pelvic lymphadenectomy, due to prostate cancer with urinary incontinence. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1966 to May 1969. Initially, the Board of Veterans' Appeals (Board) notes that the Veteran is service-connected for residuals of a radical retropubic prostatectomy and bilateral pelvic lymphadenectomy, due to prostate cancer with urinary incontinence (hereinafter "prostate disability") and erectile dysfunction due to the service-connected prostate disability. He is also in receipt of special monthly compensation (SMC) on account of loss of use of a creative organ. As will be explained in greater detail below, this matter comes before the Board from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2012 hearing at the RO in Phoenix, Arizona; a transcript thereof is on file. At that time it was clarified and agreed that the issue before the Board was entitlement to an effective date prior to January 26, 2007, for a compensable rating for the service-connected prostate disability. By way of history, the Board notes that, following receipt of the Veteran's original claim for service connection for a prostate disability on August 4, 2006, a rating decision dated January 4, 2007, granted service connection for a prostate disability, and assigned an initial noncompensable rating, effective date of receipt of that claim, i.e., August 4, 2006. The Veteran was notified of this by notice letter dated January 8, 2007. Correspondence was received from the Veteran on January 26, 2007, which the RO interpreted a claim for an increased rating for the prostate disability. Thereafter, a June 2008 rating decision granted a 40 percent rating for the prostate disability, effective January 26, 2007 (putative date of receipt of claim). That decision denied service connection for hypertension, irritable bowel syndrome (IBS), and hearing loss. The Veteran filed a Notice of Disagreements (NOD) in July 2008 as to the 40 percent assigned for the prostate disability. A Statement of the Case (SOC) was issued at to this matter in June 2009. The Veteran perfected his appeal in July 2009 and argued that the rating should be increased from 40 percent to 60 percent. In February 2010 the Board entered a decision denying service connection for IBS and hearing loss, and also dismissing a claim, as having been withdrawn, for an effective date earlier than August 4, 2006, for service connection for erectile dysfunction associated with the service-connected prostate disability. That decision also denied effective date earlier than August 4, 2006, for service connection for the prostate disability. The issue of an effective date earlier than January 26, 2007, for the award of a 40 percent disability evaluation for the prostate disability, was remanded. In the remand portion of the 2010 Board decision it was noted that at an August 2009 Board hearing the Veteran expressed his wish to file a claim for an earlier effective date for the 40 percent evaluation for the prostate disability granted in the June 2008 rating decision and made effective from January 26, 2007. The Board noted that the Veteran's March 2009 letter stated that the effective date for the 40 percent rating should be the date that he applied for service connection, and the Board found that the March 2009 statement was reasonably construed as a timely NOD as to the effective date of the increased rating awarded in the June 2008 rating decision. Therefore, the issue of entitlement to an effective date earlier than January 26, 2007, for the 40 percent rating for the prostate disability was remanded for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, an SOC was issued in March 2010 and, subsequently, the Veteran has perfected his appeal as to that matter. In response to the Veteran's July 2009 perfection of his appeal regarding the issue of entitlement to a rating in excess of 40 percent for his prostate disability, a March 2012 rating decision granted a 60 percent disability rating ,effective January 26, 2007. The RO advised the Veteran that, as he had specifically requested a 60 percent rating for his prostate disability and such was granted, his appeal was considered fully resolved. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (where there is a clear intent, a claimant may limit the appeal to a specific rating). FINDINGS OF FACT 1. The Veteran filed a timely NOD to the January 2007 rating decision assigning an initial noncompensable rating for his service-connected prostate disability, effective the date of receipt of the original service connection claim on August 4, 2006. 2. Based on the Veteran's credible and competent testimony, since August 4, 2006, he has had to change urinary padding more than 4 times daily. CONCLUSION OF LAW The criteria for an initial rating of 60 percent for the Veteran's prostate disability prior from August 4, 2006, to January 26, 2007, are met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.115, 4.115b, Diagnostic Code 7527 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. In the instant case, while the Veteran had limited his appeal in his July 2009 substantive appeal to a request for a 60 percent rating and such has been granted herein effective the date of service connection, i.e., August 4, 2006, such is a full grant of the benefit sought on appeal, to be thorough, the Board has considered whether VA met its duties to notify and assist pursuant to the VCAA. See AB, supra. Duty to Notify When a complete or substantially complete application for benefits is received, and prior to an initial unfavorable adjudication, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide. 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009) and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice requirements apply to all five elements of a service connection claim, which are (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with pre-adjudication VCAA notice by letter, dated in November 2006, with respect to claim for service connection for a prostate disability. This provided notice of the evidence needed to substantiate a service-connection claim, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. It also provided notice that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. Also, the letter provided the Veteran notice of the law and regulations governing effective dates and the assignment of disability ratings as required by Dingess, 19 Vet. App. 473 (2006). As will be explained in greater detail, this appeal stems from the rating decision which granted service connection and assigned an initial noncompensable rating for a prostate disability. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in this claim for an initial higher rating. Dingess, at 19 Vet. App. 473. Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case. Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran's service treatment records (STRs) are on file, and he was provided a copy of his STRs in July 2008. Also on file are records of VA treatment. Also, the Veteran has submitted copies of his private treatment records, which are on file. The Veteran testified in support of the claim at a May 2012 travel Board hearing before the undersigned Veterans Law Judge and a transcript thereof is on file. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) in the conduct of the travel Board hearing nor has he otherwise alleged or identified any prejudice in the conduct of the Board hearing. Rather, the hearing focused on the elements necessary for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. The Board finds that, consistent with the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has been afforded VA rating examinations in December 2006, May 2008, and more recently in October 2011. Here, the Veteran challenges the adequacy of at least the 2006 VA rating examination. In several letters he had alleged that there was malpractice involved and at his travel Board hearing he alleged that there were many errors in his rating examination and, so, it was inadequate and incomplete, and should be "set aside." In this regard, even in light of the duty to independently consider issues suggested by the evidence of record, under Comer v. Peake, 552 F.3d 1362, 1368 (Fed.Cir. 2009), the Board is entitled to presume both the competence of a VA examiner and the adequacy of an examiner's opinion, unless challenged. See Rizzo v. Shinseki, 580 F.3d at 1290-91 and Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). Here, the Veteran's allegations as to the putative "malpractice" are no more than his own personal beliefs. They do not amount to competent evidence which would reflect upon the adequacy of the examination, the competence of the examiner or whether there was any alleged "malpractice" or other inadequacy. See generally 38 C.F.R. § 3.159(a) and (b) (defining competent medical evidence and competent lay evidence). Moreover, the Board may not "set aside" or, as the Veteran would apparently have the Board do, declare any portion of a report of a VA examination to be null and void. Likewise, neither the RO nor the Board may not amend the report of that VA rating examination. This was explained to the Veteran in a March 31, 2009, letter to him from the RO, which enclosed a Memorandum of that same date observing that a review of both the examination in question and the terminology described by the rating specialist in the June 2008 rating decision did not reveal an inconsistency and could only be changed if the VA examiner amended his examination report. Accordingly, the examiner's opinion will be deemed adequate. As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background On VA examination in December 2006 the Veteran's claim file was reviewed. The Veteran's activities of daily living were normal and he reported that he had not had any lethargy, weakness, anorexia, or any gain or loss of weight. It was reported that he voided once per night on occasion. He voided every 4 to 6 hours during the day. He denied incontinence. He had not had any treatment since a January 2005 retropubic total radical prostatectomy at a private medical facility, at which time he had had radical lymph dissection for adenocarcinoma. He had not had any residuals, medication or radiation therapy. He denied having had any urinary tract infection, bladder stones or nephritis. He denied any catheterization, dilatation, drainage procedures, diet therapy, medications, subsequent invasive procedures or symptoms which were an endocrinologoical, neurological, infectious, vascular or psychological nature. On rectal examination he had a "flat bed" without a palpable prostate. The diagnosis was postoperative status retropubic radical prostatectomy for adenocarcinoma of the prostate. In January 2007 the Veteran provided a ledger covering the period of January 15 to 19, 2007, of the times that he had urinary leakage, voiding, and changed diapers. On VA examination of May 21, 2008, an examiner reviewed the Veteran's claim file. The Veteran reported that he experienced urinary incontinence. He reported that he continuously wore pads at work and changed them on average 2 to 3 times a day. When working in the yard or when involved in activities requiring lifting, because of inevitable stress incontinence, he had incontinence and would have to remove his Depends or simply soil his clothing and then wash his clothing. He might have as many as 3 or 4 episodes of incontinence. The incontinence he had in most situations was associated with stress, sneezing, coughing, and occasionally with bending or stooping, but usually only with lifting while stooping did he have incontinence; and this occurred on average 2 to 3 times daily. He had such episodes frequently when in situations requiring heavy lifting. He wore Depends at night, and used a protective bed sheet. He did not have stress incontinence for the most part during the night, but might if he had an episode of sneezing, although this occurred infrequently, perhaps 2 to 3 times monthly because he took precautions. The Veteran reported having been trained in Kegel exercises and was using them. These exercises had helped the more spontaneous incontinence that he had had shortly after his surgery. The exercises had not altered the episodes of stress incontinence. On physical examination his bladder was not distended. His prostate bed was empty. He did not describe pain or a sense of urgency upon examination of the prostate or bladder, which felt unremarkable. The examiner felt that the Veteran had ongoing stress related incontinence from his prostatectomy which was moderately impairing. He continuously wore pads, which he changed 2 to 3 times during the day. He had very frequent stress related incontinence when working in the yard and when required to do any bending, stooping or lifting. He wore diapers at night, which were infrequently wet. The Veteran submitted another log in September 2011 showing how often he needed to change absorbent material over a three day period in that month. His incontinence required him to change his urinary pads more than 4 times a day. On VA examination in October 2011 the Veteran's claim file was reviewed. It was reported that the Veteran had stress incontinence with leakage upon bearing down, coughing, and bending down. He was not taking any medication. His prostate cancer was in remission. He now had voiding dysfunction which caused urinary leakage that required absorbent material that had to be changed more than 4 times per day. The voiding dysfunction did not cause increased urinary frequency and the voiding dysfunction did not cause signs or symptoms of obstructed voiding. He did not have a history of recurrent symptomatic urinary tract or kidney infections, although he did have erectile dysfunction. He did not have any other residual condition or complications, or both, due to prostate cancer or treatment for prostate cancer. He did not have any scares, surgical or otherwise, related to his treatment. However, he did have urinary leakage, which was observed upon Valsalva maneuver. The residuals of his prostate cancer affected his ability to work because he worked as a dental hygienist full-time and had to change adult Depends pads 6 times per day during work but otherwise he was able to function in his full-time job. At the May 2012 travel Board hearing the Veteran agreed that the issue on appeal was entitlement to an effective date prior to January 26, 2007, for a compensable rating for his prostate disability. Page 2 of the transcript (T2). He testified that there were many errors in his rating examination. He had been asked at that time if he had incontinence and had replied that he did not, which was and still is correct. However, he has stress incontinence, which is a different condition. The RO denied a higher rating based on the information in the examination report and information from Dr. S., his urologist, who reported that the Veteran had a very tiny amount of leakage when he sneezed. The Veteran indicated this characterization by Dr. S. was incorrect. T3. The Veteran testified that stress incontinence is due to stress or pressure on the bladder and that even a tiny amount of stress could cause leakage. Thus, he had stress incontinence, which was not diagnosed at the rating examination. Ever since he had had a catheter removed in 2005 he had had to wear absorbent material. He felt that the VA rating examination was inadequate and incomplete and should be "set aside" just as his 40 percent disability rating had been set aside when it was retroactively increased to a 60 percent disability rating [by a March 2012 rating decision]. T3. The Veteran testified that his leakage varied, and depended upon the amount of stress. T3. When his disability rating was increased to 60 percent it had not been clear what constituted absorbent material; rather, this had been very vague. He had found a past Board decision (adjudicating another Veteran's claim) in which a Veteran had used just a wad of toilet paper (as absorbent material). The Veteran testified that under those conditions, if he had been using toilet paper, he would have had to change it every 15 minutes or, perhaps, more often. Thus, the Veteran felt that the rating criteria were "basically arbitrary and capricious" and did not have any real basis in medicine or scientific fact. T4. He stated that if he had used toilet paper as an absorbent material, he would have had to use it many times each day; but if he had using pads or diapers, e.g., Depends, he might have had to change them 3 or 4 times a day. Thus, on average, he would have had to use 3 or 4 pads each day. T4. The Veteran testified that there was a failure to diagnosis his condition because prior to January 2007 his residuals of a prostatectomy warranted a compensable rating. He felt that prior to January 2007 the frequency of his urination would warrant a compensable disability rating because he had to make sure that he voided at least every hour or more often, just to reduce the amount of leakage (even prior to January 2007). T5. This had been true since his catheter had been removed in February 2005. The symptoms he now had were exactly the same symptoms he had prior to January 2007, without any improvement in the symptoms, i.e., the urinary leakage and urinary frequency. T6. Rating Principles and Criteria Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present. 38 C.F.R. § 4.1, 4.2. A higher rating is assigned if it more nearly approximates such rating. See 38 C.F.R. §§ 4.7, 4.21. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings). 38 C.F.R. § 4.115b, Diagnostic Code 7527 provides that infections, hypertrophy, or postoperative residuals of the prostate are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. In turn, voiding dysfunction is to be rated as urinary leakage, frequency, or obstructed voiding. The applicable criteria provide that with continual urine leakage, postoperative urinary diversion, urinary incontinence, or stress incontinence a 20 percent rating is assigned for urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is assigned for urinary leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is assigned for urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The criteria for urinary frequency provide that a 10 percent rating is assigned for urinary frequency with daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is assigned for urinary frequency with daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is assigned for urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night. As to obstructive urinary symptoms the applicable rating criteria provide that symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable rating. A 10 percent rating is assigned for obstructed voiding with 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.; (4) stricture disease requiring periodic dilatation every 2 to 3 months. Obstructive voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. As to urinary tract infections, when there is long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management, a 10 percent rating is warranted. Recurrent symptomatic urinary infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating. Urinary tract infections with poor renal function are to be rated as renal dysfunction. As to renal dysfunction, a noncompensable disability rating is assigned for renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. A 30 percent rating is assigned for renal dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7100. A 60 percent rating is assigned for renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assigned for renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is assigned for renal dysfunction when requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Analysis The Veteran was notified, by letter of January 8, 2007, that the RO granted service connection for prostate disability (as a residual of surgery for prostate cancer) and assigned an initial noncompensable rating, all effective date of receipt of the original claim on August 4, 2006. A mere 18 days later, on January 26, 2007, correspondence was received from the Veteran addressing the rating which was assigned. He submitted a "log" addressing the frequency of his having to change diapers. In this correspondence he specifically stated that that he wanted the RO to "[i]mmediately change your records and provide me with disability for incontinence from August 4, 2006." The RO construed this to be an application for an increased rating. Another letter was received from the Veteran on January 31, 2007, which again addressed the severity of his service-connected residuals of a prostatectomy. In determining whether a written communication constitutes an NOD, which initiates an appeal to the Board, the actual wording of the communication and the context in which it was written are important elements. Jarvis v. West, 12 Vet. App. 559, 561 (1999) (citing Drenkhahn v. Derwinski, 2 Vet. App. 207, 208 (1992); Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991)). In direct appeals, all filings must be read 'in a liberal manner' regardless whether or not the Veteran is represented. 38 C.F.R. § 20.202." Robinson v. Shinseki, 557 F.3d 1355, 1359-60 (Fed. Cir. 2009) (citing Comer v. Peake, 552 F.3d 1362, 1368 (Fed.Cir. 2009)). This is particularly true when, as here, the Veteran had no representative but, rather, has at all times acted pro se. See Szemraj v. Principi, 357 F.3d 1370 (Fed.Cir. 2004). See also Collaro v. West, 136 F.3d 1304, 1309 (Fed.Cir. 1998). In determining whether a filing constitutes an NOD matters for consideration are whether the correspondence was received within one year of notification of the action which might be appealed; whether it is in response to or cites to the notification of the denial which might be appealed; whether it can reasonably be construed that it disagrees with the action that might be appealed; whether it indicates there is or is not additional evidence; whether it uses terms suggestive of reopening, or, rather a request for readjudication. Generally see Cordova v. Peake, 2008 WL 1036573, No. 06-1980, slip op. (U.S. Vet. App. March 26, 2008) (nonprecedential memorandum decision). Here, it is clear that the Veteran was disagreeing with the initial assignment of a noncompensable disability rating in both of his letters in January 2007, since each was clearly in response to the notification of the initial rating assigned by the rating decision earlier that month. In fact, in his letter received on January 31, 2007, he requested that the RO "[i]mmediately change your records and provide me the disability for incontinence from August 4, 2006." Accordingly, in these circumstances, the Board finds that this appeal stems from the January 2007 rating decision which granted service connection and assigned an initial noncompensable rating for residuals of his prostate disability. With respect to the contention set forth in various pleadings that the criteria for rating the Veteran's service-connected disability at issue are somehow inaccurate or incomplete, the Board does not have the discretion, authority or power to alter, amend or invalidate the criteria in the Schedule for Rating Disabilities. Rather, the Board is bound by the Schedule for Rating Disabilities. Moreover, as to his testimony that stress incontinence is different from other forms of incontinence, the applicable schedular rating criteria specifically lists "stress incontinence" as a form of voiding dysfunction and is rated the same as general urinary incontinence. To the extent that the Veteran disagrees with this method for rating his incontinence, again the Board is bound by the Schedule for Rating Disabilities. Also, the Board has considered the copies of a Board decision pertaining the adjudication of a claim for an increased rating for residuals of a prostatectomy in the case of another Veteran. However, Board decisions are not precedential in nature. See generally 38 C.F.R. § 20.1303 (2012) ("Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.") Although the Veteran had submitted a "log" in January 2007 in which he indicated that he had to change absorbent material three times a day over a period of several days in that same month; here, the Board is persuaded by the Veteran's credibile testimony that he has continuously had symptoms of urinary frequency requiring the changing of urinary padding more than four times a day since he filed his original claim for service connection for the residuals of his prostatectomy. Accordingly, with the favorable resolution of doubt in favor of the Veteran, a 60 percent rating is warranted since August 4, 2006, on the basis of urinary incontinence, whether due to stress or otherwise. A schedular rating in excess of 60 percent may be assigned only if the residuals of the Veteran's prostatectomy produce renal dysfunction of such severity as to warrant either an 80 percent or a 100 percent disability rating. However, here, the Veteran has not contended, and the evidence does not show, renal dysfunction, much less renal dysfunction of such severity as manifested by persistent edema, albuminuria with abnormality levels of BUN (blood-urea-nitrogen), generalized poor health, renal dialysis, or markedly decreased function of the kidney or other organ system, including the cardiovascular system. Moreover, as the Veteran had limited his appeal in his July 2009 substantive appeal to a request for a 60 percent rating and such has been granted herein effective the date of service connection, i.e., August 4, 2006, such is a full grant of the benefit sought on appeal. See AB, supra. Extraschedular Consideration The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance but not from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating. The threshold factor in this determination is whether there is such an exceptional disability picture that the available schedular ratings criteria are inadequate. This is done by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably encompass the assigned disability level and the symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). Significantly, since 38 U.S.C.A. § 1155 provides that the basis of a disability rating is the "reduction in earning capacity," any compensable rating encompasses employment interference. Here, the applicable schedular rating criteria encompass a great variety of symptoms. While there has been a vague allegation that the Schedule for Rating Disabilities is inadequate in this case, the Veteran has not specifically indicated what relevant factors are not encompassed by the schedular rating criteria. Moreover, as his prostate disability is manifested primarily by urinary incontinence and frequency, the Board notes that his 60 percent rating full compensates him for such symptoms. Moreover, the Veteran has not had frequent periods of hospitalizations and marked interference with employment due to the disability at issue is not shown by the evidence. Thus, the assigned schedular rating are adequate and referral for consideration of an extraschedular rating is not required. The Board has also considered whether the Veterans seeks a higher rating based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran is employed full-time. Therefore, the issue of entitlement to TDIU has not been reasonably raised by the record. In sum, the Board finds that since the date of the initial grant of service connection, on August 4, 2006, the Veteran's service-connected disability of the prostate has been no more than 60 percent disabling, and so the rating cannot be "staged" because this represents the greatest level of functional impairment attributable to the condition. Fenderson v. West, 12 Vet. App. 119 (1999). ORDER A 60 percent rating for the Veteran's service-connected prostate disability from August 4, 2006, to January 26, 2007, but no higher, is granted, subject to applicable law and regulations governing the award of monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs