Citation Nr: 1312697	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  09-29 618	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a rating higher than 40 percent for cystitis with recurrent prostatitis. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from July 1957 to July 1968. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

Competent and probative evidence shows that the Veteran suffers from urine leakage/incontinence requiring the wearing of absorbent materials which must be changed more than 4 times per day. 


CONCLUSION OF LAW

The criteria for an evaluation of 60 percent for Veteran's service-connected cystitis with recurrent prostatitis have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b).  The notice requirements were accomplished in letters sent in December 2008 and May 2009.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).  The claim was readjudicated in the February 2010 supplemental statement of the case.

The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained.  The Veteran's VA treatment records have been obtained and the Veteran has submitted reports from private providers.  In addition, he has been provided with an appropriate VA examination in connection with the claim.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  Indeed, the Board is granting the benefit specifically sought on appeal-specifically, a 60 percent rating.  Therefore, no further assistance to develop evidence is required.  

Increased Rating

Service connection for cystitis with recurrent prostatitis was established by a February 1969 rating decision.  The Veteran filed the instant claim for an increased rating in November 2008.  The Veteran specifically requests, on his substantive appeal, that a 60 percent evaluation for his cystitis with recurrent prostatitis be assigned.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern 
is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Veteran's service-connected cystitis with recurrent prostatitis has been rated 40 percent disabling by the RO under the provisions of Diagnostic Code 7512.  38 C.F.R. § 4.115b.

Diagnostic Code 7512 pertains to chronic cystitis to include interstitial and all etiologies, infectious and noninfectious, which is to be rated as voiding dysfunction. 

Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding.  The particular voiding condition is to be rated as urine leakage, urinary frequency, or obstructed voiding. 

Urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating.  Urinary leakage which requires the use of absorbent materials which must be changed two to four times a day warrants a 40 percent rating.  Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence warrants a maximum rating of 60 percent when it requires the use of an appliance or the wearing of 

absorbent materials that must be changed more than 4 times per day.  38 C.F.R. 
§ 4.115a.

The maximum possible evaluation for urinary frequency is 40 percent.  Id.  The maximum possible rating for obstructed voiding and urinary tract infections is 30 percent.  Id.  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

VA treatment records show that the Veteran underwent brachytherapy in 2008 for carcinoma of the prostate.  On VA examination in January 2009, the Veteran reported voiding approximately 6 to 9 times a day, approximately every 60 to 90 minutes, and more than 6 times nightly, approximately every 45 to 60 minutes.  The Veteran endorsed urinary urgency, hesitancy, weak stream, urinary tract infections, and painful urination.  He reported urinary leakage.  He did not require catherization, dilations, drainage procedures, or diet maintenance.  The Veteran denied kidney dysfunction, to include kidney pain, bladder stones, or inflammation of the kidneys.  The examiner noted a history of cystoscopy and IVP in 1967.  The Veteran was also diagnosed with a malignant tumor in 2008.  He was successfully treated with radiation therapy, with no residuals of malignancy.  Current treatment consisted of medication, to include antibiotics for urinary tract infection.  He also took medication for hypertension.  The examiner diagnosed cystitis and recurrent prostatitis.  The disability affected the Veteran occupationally as it was productive of frequent urination.  While the examiner noted urine leakage, he failed to comment on whether the Veteran required use of absorbent materials for urinary incontinence.  

In a statement received in January 2009 in support of his claim for a higher rating, the Veteran, a physician, related worsening of symptoms associated with his service-connected cystitis with recurrent prostatitis, to include increased frequency of recurrent infections requiring treatment.  Reportedly, the medication dosage to suppress recurrence of infections had been steadily increased in the previous 4 years.  He also endorsed increased urinary urgency, hesitancy, painful flow, very weak stream that ranged from dribbling to a thin flow that started and stopped, problems initiating voiding, discomfort and pain with voiding, and increased incontinence with soiling.  He stated that he carried with him extra changes of disposable underwear and changed the absorbent materials up to 4 times per day.  The Veteran, a physician, indicated that he had to close his private practice in 2007, and had ceased surgery 2 years before that date due to the service-connected disability.  

In an April 2009 statement, the Veteran stated that he mistakenly reported changing of absorbent materials 3 to 4 times a day because he thought he was asked to report how many times he was required to change absorbent materials during daytime hours.  Indeed, he required changing of absorbent materials 3 to 4 times during the day, but he also added that he required changing absorbent material 3 to 4 times per night.  As such, he changed absorbent materials due to urinary leakage at least 6 times during a 24 hour period.  

In May 2009, the Veteran submitted witness statements from coworkers in support of his claim for a higher rating.  In one statement, J.L.H., reported that she was aware of the Veteran's urinary incontinence with excessive use of incontinence products.  In a second statement L.M., who works with the Veteran, reported that the Veteran had to take personal time off and also leave work during clinic hours to care for his prostate related problems.  The Veteran's frequent use of the restroom interrupted patient care.  Finally, Dr. R.L.S. who reportedly works with the Veteran 8 to 9 hours a day, 5 days a week, also noted that the Veteran suffered from urinary incontinence and wore adult diapers.  In September 2009, the Veteran reported urinary frequency and dysuria with nocturia a couple of times per night.  

In summary, the evidence, to include VA clinical records and VA examination report in January 2009, witness statements, and the Veteran's statements, indicates that the Veteran suffers from such symptoms as urinary urgency, hesitancy, weak or intermittent stream, dysuria, dribbling, straining to urinate, and occasional urinary tract infections treated with antibiotics.  He has very frequent daytime and nighttime voiding.  Additionally, the Veteran complains of incontinence with urine leakage that requires changing absorbent materials at least 6 times during a 24 hour period.  

Affording the Veteran the benefit of the doubt, the Board finds that the disability picture is consistent with a 60 percent disability rating.  In this regard, the Board notes that VA treatment records throughout the period on appeal contained complaints of urinary frequency, to include nocturia, that are consistent with the examiner's findings in January 2009.  The Veteran reported incontinence and the need for absorbent materials, which he was required to change more than 4 times a day.  The use of absorbent materials, along with incontinence, is further supported by witness statements of the Veteran's coworkers.  Considering this evidence and applying reasonable doubt, the Board finds that the necessary elements for a rating increase to 60 percent have been shown.  

The Board is acutely aware that in 2008 the Veteran was diagnosed and treated for prostate cancer with radiation therapy.  In an August 2009 opinion, a VA clinician opined that it was impossible to determine whether the Veteran's increased urinary symptoms were related to the service-connected cystitis with recurrent prostatitis as opposed to the nonservice-connected prostate cancer.  The clinician explained that based on his clinical experience, it was impossible to differentiate.  

It is well-established under VA law that, when the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Here, there is no competent evidence differentiating symptomatology related to the service connected cystitis with recurrent prostatitis and the post-service prostate cancer.  Moreover, the VA examiner in January 2009 reported that the Veteran's prostate cancer was successfully treated with radiation therapy, and noted no residuals of malignancy.  

Accordingly, the Board resolves doubt in the Veteran's favor and finds that the evidence supports a maximum 60 percent rating for his service-connected cystitis with recurrent prostatitis based on voiding dysfunction.  As the Board has granted the specific evaluation identified by the Veteran on his substantive appeal as the benefit sought on appeal, the claim has been granted in full.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating); see also Hamilton v. Brown, 4 Vet. App. 528, 544 (1993).


ORDER

A 60 percent evaluation for service-connected cystitis with recurrent prostatitis is granted, subject to the rules and regulations governing the payment of VA monetary benefits.



____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs