Citation Nr: 1317057 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-15 436A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable disability evaluation for urethral stricture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from August 1981 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision prepared by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) in April 2008 and issued to the Veteran in May 2008 (May 2008 rating decision). The Veteran requested a hearing before the Board. The requested hearing was scheduled in February 2011. Before the date of the scheduled hearing, the Veteran requested cancellation of the hearing. See February 1, 2011 electronic message from Veteran to representative. The Veteran has been afforded his opportunity for a hearing, and appellate review may continue. In a February 2008 statement, the Veteran's spouse asserts that the Veteran is unable to work due to his "upper body problems." As the Veteran is service-connected for a right shoulder disability, it appears that the Veteran's spouse may be attempting to raise a claim for total compensation based on individual unemployability based on a service-connected disability. This issue is therefore REFERRED to the agency of original jurisdiction for appropriate action. FINDINGS OF FACT 1. The current medical evidence uniformly reflects that the Veteran's complaint of pain on ejaculation has been reported continuously since his service separation in 1994. 2. Resolving in the Veteran's favor the conflicting opinions as to the cause of the Veteran's current urinary frequency symptoms and the complaint of pain on ejaculation, those symptoms are attributable to the service-connected genitourinary disability, characterized as urethral stricture. 3. The Veteran's complaints of urinary frequency and pain, including a chronic tingling sensation, and painful ejaculation, approximate the criteria for a 20 percent rating, including by analogy. CONCLUSION OF LAW The criteria for a 20 percent evaluation for urethral stricture, but no criterion for any higher evaluation, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 West 2002 & Supp. 2012; 38 C.F.R. §§ 3.159, 4.115a, 4.115b, Diagnostic Codes 7518, 7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to an evaluation higher than the noncompensable rating currently assigned for urethral stricture. Before addressing the claim on the merits, the Board will consider whether VA has met its duties to assist the Veteran. VA's duties to the claimant VA has a duty to notify a claimant of the evidence required to substantiate a claim for benefits and a duty to assist claimants to substantiate claims for VA benefits as provided for by the Veterans Claims Assistance Act (VCAA) of 2000. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Duty to Notify Under the VCAA, VA has a duty to inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was notified by a letter issued in December 2007 of the criteria for an increased rating. That letter included notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. Dingess, supra. There is no presumption that any timing or content notice resulted in prejudice to the Veteran. Sanders v. Nicholson, 129 S.Ct. 1696, 1704-05 (2009). The Veteran does not argue that any defect in notice, either as to timing or as to content, prejudiced his effort to substantiate the claim for an increased evaluation. The Board concludes that the Veteran was not prejudiced by any defect in the timing or content of notice. The duty to notify the Veteran has been met. Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has been afforded VA examinations of the urinary system. VA clinical records have been obtained. The Veteran has stated that he does not have any care relevant to this claim outside the VA system. All available VA treatment records, including electronic records, and statements from Veteran, among the other evidence in the record for appellate review were reviewed in connection with the VA examination. No clinical records were attached via the electronic record. The Board notes that VA queried the Social Security Administration system in 2008 and found no records, such as an application for disability benefits. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for higher rating for urinary disability Historically, the Veteran submitted a claim for service connection for a genitourinary disorder claimed as a urinary tract infection shortly after his service discharge in November 1994. At the time of a December 1994 VA examination, the Veteran had three primary genitourinary complaints: painful urination, occasional blood in the urine; and, pain on ejaculation. The Veteran appealed the initial denial of service connection for a genitourinary disorder. At a hearing before the Board in 1999, the Veteran complained of three primary symptoms: tingling and pain on urination; occasional blood in the urine; and, pain on ejaculation. VA outpatient treatment in 2002 disclosed that the Veteran had recurrent macroscopic hematuria, urethral pain, an enlarged prostate, and pain on ejaculation. On specialty consultation, the Veteran was found to have a distal bulbar stricture of the urethra which would not allow the cystoscope to pass. An internal urethrotomy was performed to cut through the stricture, which was described as dense, in October 2002. A catheter was left in place following the surgery and was removed in late October 2002. On VA examination conducted in January 2003, the examiner opined that the Veteran had a history of urethral strictures, probably due to inflammatory disease of the urethra. The Veteran reported a good flow of urine status post stricture removal, with mild tingling in the urethra. The examiner stated that the Veteran required further staging, and that the stricture was likely to recur. In late January 2003, the Veteran underwent another cystoscopy; retrograde urethrocystogram was not undertaken due to technical difficulties. By an April 2003 rating decision, service connection for a genitourinary disorder, characterized as urinary stricture, was granted, and a noncompensable evaluation was assigned. In October 2004, the Veteran again sought evaluation, stating he felt like the stricture was returning, with decreased urinary flow, some difficulty voiding, and painful ejaculation. The evaluation at that time was that the Veteran had difficulty with voiding and ejaculation status post direct vision internal urethrotomy (DVIU) of difficult stricture. In January 2005, the Veteran underwent cystoscopy to reevaluate the cause of the continuing symptoms. The pre-procedure diagnosis was history of urethral stricture and possible prostatitis. Minimal stricture of the urethra was the only diagnosis assigned following the January 2005 procedure. In May 2007, the Veteran again sought evaluation, complaining of painful ejaculation for at least the past 15 years. Cystoscopy revealed minimal stricture disease and minimal prostatomegaly. The provider noted that the Veteran was most concerned over recurrent ejaculatory pain, which was a chronic process existing for 15 years. Further diagnostic examinations, including ultrasound, revealed prostatic calcifications and an anterior fibromuscular zone. The assigned diagnosis was possible recurrent prostatitis. In September 2007, the Veteran submitted a claim for a compensable rating for the service-connected genitourinary disability. The Veteran reported increased pain, frequency of three to four times per night, post-urination leakage, which the Veteran described as a post-surgical complication, and pain on ejaculation. In an undated letter apparently received in February 2008 (based on the date stamp of the communications above and below the statement in the claims files), the Veteran's spouse stated the Veteran has "post urinary drip" and "gets up several times throughout the night to urinate." On VA examination conducted in February 2008, the Veteran reported painful ejaculation, dribbling of urine after urination, and having to get up to urinate three to four times each night. The dribbling of urine was only noted just after urination; the Veteran did not wear absorbent materials. The examiner noted that the proximal urethra was "remarkable only for minimal bilobar prostatomegaly without obstruction." The examiner concluded that the Veteran had minimal urethral stricture, prostatic calcifications, and benign prostatic hypertrophy. The examiner provided an addendum opinion in April 2008 which states that the Veteran's prostatic calcifications were not related to the service-connected urethral stricture. In July 2008, the Veteran disagreed with the denial of a compensable rating for voiding dysfunction. The Veteran disagreed with the assessment that current voiding dysfunction was due to benign prostatic hypertrophy, for which service connection was not in effect. In particular, the Veteran argued, his symptoms were essentially unchanged since service, regardless of the name assigned for the service-connected disability. The provider who conducted November 2008 evaluation again noted that diagnostic examinations conducted in March 2008 disclosed calcifications in the prostate, but also further noted that diagnostic examinations conducted in November 2008 did not reveal calcifications in the prostate. Real-time sonography showed complete bladder emptying. The examiner concluded that the Veteran's painful ejaculation was due to prostatic calculi (prostatolithiasis) or chronic prostatitis; the provider again suggested that chronic prostatitis be ruled out. The Veteran's prostate size had decreased, and no diagnosis of prostatic hypertrophy was assigned. The examiner concluded that the Veteran's urethral stricture was quiescent. Provisions governing analysis of claims for higher ratings The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R., Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. Consideration must be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Stricture of the urethra is rated as a voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7518. Voiding dysfunction is further classified as involving urine leakage, urinary frequency, or obstructive voiding. 38 C.F .R. § 4.115a. For urine leakage, a 20 percent rating is warranted where the condition requires the wearing of absorbent materials which must be changed fewer than two times per day. 38 C.F .R. § 4.115a. A 40 percent rating is assigned where the condition requires the wearing of absorbent materials which must be changed 2 to 4 times daily. The criteria for rating urinary frequency specify that a 10 percent rating is warranted where there is a daytime voiding interval between two and three hours, or awakening to void two times per night. 38 C.F .R. § 4.115a. Daytime voiding interval between one and two hours, or awakening to void three to four times per night, is rated 20 percent disabling. Daytime voiding interval of less than one hour, or awakening to void five or more times per night, is rated 40 percent disabling. A 30 percent rating is warranted for obstructive voiding if there is urinary retention requiring intermittent or continuous catheterization. There is no diagnostic code specifically applicable to the Veteran's complaint of painful ejaculation. This symptom is rated by analogy with the Veteran's voiding dysfunction, since the symptoms arose at the same time, following the Veteran's genitourinary treatment in service. See 38 C.F.R. § 4.20 (2012) (allowing for rating of unlisted condition by analogy to closely related disease or injury). Analysis In his September 2007 claim for an increased rating for urethral stricture, the Veteran reported a voiding frequency of three to four times per night in each of his statements, and the Veteran repeated that report at the time of VA examination conducted in February 2008. The Veteran's wife described her observation that the Veteran had to get up at night to urinate about every 90 minutes. During the pendency of this claim, the Veteran has consistently reported that he must void three to four times each night. During the pendency of this claim, the Veteran has also consistently reported pain on ejaculation. The examiner who conducted February 2008 VA examination concluded that the Veteran had minimal urethral stricture, prostatic calcifications, benign prostatic hypertrophy, and history of painful ejaculation for 15 years. The examiner did not attribute the Veteran's current complaints of voiding frequency or pain on ejaculation to a specific diagnosis or etiology. Therefore, this examination report is neither favorable nor unfavorable to the Veteran's claim. In an April 2008 addendum, the reviewer, as noted above, provided an opinion that "an enlarged prostate gland is not related to urethral stricture," and provided an opinion that "prostatic calcifications are not related to urethral stricture." This opinion is neither favorable nor unfavorable to the Veteran's claim, as it does not specifically attribute voiding frequency or painful ejaculation to a specific diagnosis or state whether the complaints of increased nighttime voiding frequency or painful ejaculation are or are not related to the Veteran's service-connected urethral stricture. However, the RO determined that this opinion implied that the Veteran's voiding frequency was due to enlargement of the prostate. As noted, the RO interpreted the April 2008 as suggesting that the Veteran's increased nighttime voiding frequency was due to benign prostatic hypertrophy, and that the complaints of painful ejaculation were due to calcifications in the prostate (prostatolithiasis). The record establishes that the provider who treated the Veteran in April 2007 estimated the Veteran's prostate size as 40 cubic centimeters, and prescribed a course of antibiotics. The provider who treated the Veteran in April 2007 did not attribute the Veteran's reported voiding frequency to any disorder other than urethral strictures. At the time of examination in 2008 examination, the Veteran's prostate volume was 25.1 cubic centimeters. The examiner did not explain why the prostate volume was reduced, noting only that the Veteran's prostate was enlarged prior to the diagnosis of urethral stricture in 2002. The provider who treated the Veteran in November 2008 determined that the Veteran's prostate size was 25 cc, but the provider did not assign a diagnosis of prostatic hypertrophy. Thus, the record reflects one medical opinion that attributes the Veteran's genitourinary symptoms to service-connected urethral stricture (April 2007), and one opinion which reflects that the Veteran has manifested an enlarged prostate from 2002 to the present (April 2008), without specifically stating whether urinary symptoms should be attributed to that disorder or to the service-connected urethral stricture, and without discussion of the significance of the specific findings as to prostate size in the Veteran's case. Given the somewhat conflicting medical opinions, and the lack of specificity in the 2008 opinion which the RO determined was unfavorable to the Veteran, it is the Board's opinion that the Veteran's reports of nighttime urinary frequency should be evaluated as attributable to the service-connected genitourinary disability. The RO also determined that the Veteran's urethral stricture did not warrant a compensable evaluation on the basis that painful ejaculation was due to calcifications in the prostate and was not attributable to the service-connected disability. However, although March 2008 imaging studies revealed calcifications in the prostate, studies conducted in November 2008 failed to reveal and prostatolithiasis. This casts doubt on the conclusion rendered by the examiner who provided the April 2008 opinion that the Veteran's complaint of painful ejaculation was due to prostatolithiasis, if the April 2008 opinion should be interpreted to imply that link. A VA provider who treated the Veteran in April 2007 (CJC, MD) provided an opinion that the Veteran had painful ejaculation secondary to urethral stricture disease. See page 4 of VA outpatient treatment records printed out on April 8, 2008. The provider who conducted the November 2008 outpatient treatment provided conflicting opinions. In the list of urologic problems, the provider listed four problems, listing urethral stricture disease as problem #1, followed by painful ejaculation, prostatolithiasis, and, as problem #4, stated that chronic prostatitis should be ruled out. In the impressions, the provided listed three diagnoses, listing prostatic calculi as #1 in the list. The provider stated that the Veteran had "painful ejaculation, secondary to #1." Unfortunately, the provider did not specify which list he was referring to, leaving open whether painful ejaculation was related to problem #1, urethral stricture disease, or #1 under impression, prostatic calculi, rule out chronic prostatitis. However, that same provider (CJC, MD) had unequivocally stated in April 2007 that the Veteran's diagnoses were "1. Urethral stricture disease; 2. Painful ejaculation secondary to #1." The Board concludes that the provider intended his opinion to remain unchanged, and that the November 2008 opinion, consistent with the April 2007 opinion, stated that the Veteran's painful ejaculation is due to urethral stricture. There is one VA opinion (April 2007) that unequivocally states that the Veteran's current symptoms of painful ejaculation is due to service-connected urethral stricture disease, one opinion (November 2008) which is probably intended to be consistent with the April 2007 opinion, and one opinion (April 2008) that states that painful ejaculation is due to prostatolithiasis, without notation of the history of consistent reports of painful ejaculation for 15 years, that is since the Veteran's 1993 treatment of a genitourinary problem in service. Moreover, as set forth at length above, the Veteran has continuously reported painful ejaculation, in December 1994 (one month after his service discharge), in 1999, in 2002, in 2005, in 2007, and throughout the pendency of this claim. The Board agrees with the Veteran's contention that, regardless of the diagnosis to which painful ejaculation is attributed, that symptom may be rated as part and parcel of the service-connected disability. Resolving in the Veteran's favor any reasonable doubt as to the weight of the conflicting medical opinions, the Board finds that the evidence is at least in equipoise to warrant a finding that painful ejaculation is a symptom of service-connected urethral stricture and should be included in the rating for that disorder. The Veteran has reported that he must void three to four times per night. Awakening to void two times per night warrants a 10 percent rating. Awakening three to four times per night warrants a 20 percent rating. The number of times an individual wakes up at night to void is somewhat subjective. In particular, the Veteran does not report voiding frequently or having excessive voiding during the day. However, the Veteran has consistently reported, during the pendency of this claim, that he must void at least three times per night. The Board finds that the Veteran's nighttime voiding frequency, when considered in conjunction with the complaint of painful ejaculation, warrants a 20 percent evaluation for urethral stricture. The next higher evaluation for urethral stricture, a 40 percent evaluation, is warranted with daytime voiding intervals of one hours or less or awakening five or more times at night. The Veteran has not reported a frequency of voiding that might meet either of those criteria at any time during the pendency of this claim. Even with consideration of the Veteran's complaint of painful ejaculation, it does not appear to the Board that an evaluation in excess of 20 percent is warranted. The Board notes, in particular, that the Veteran has not contended that this complaint is equivalent to loss of erectile power, so as to warrant a separate compensable evaluation, such as under DC 7522. If the statement submitted by the Veteran's spouse in February 2008 raises a claim for loss of use of a creative organ, that statement, as noted in the Introduction, is Referred to the RO. Resolving reasonable doubt in the Veteran's favor, a 20 percent evaluation for urethral stricture, but no higher evaluation, is warranted. Extraschedular consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The analytical steps necessary to determine whether referral for such consideration is warranted have been clarified. See Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule. When the disability picture is contemplated, the assigned schedular rating is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case reflects that the Veteran has a symptom of his service-connected disability, painful ejaculation, which is not specifically addressed by the rating criteria for voiding dysfunction, or by any schedular criterion for a genitourinary disorder. The rating schedule does not include criteria specific to every symptom a Veteran may manifest. The rating schedule is especially non-specific as to symptoms of sexual dysfunction, since the rating schedule is intended to compensate a Veteran for decreased industrial capacity, and sexual dysfunction is not directly compensated by the rating schedule. The Board has resolved this conflict between reported symptoms and the types of symptoms for which the rating schedule compensates by resolving all conflicts in the evidence in the Veteran's favor to support a compensable, 20 percent evaluation for voiding dysfunction. To the extent that any symptom of the service-connected disability is not encompassed in the schedular criteria, the Board notes that, during the pendency of this claim, the Veteran began attending college classes through the VA Vocational Rehabilitation Program. See Veteran's November 4, 2008 letter to VA. This fact establishes that the Veteran's genitourinary disability does not result in such an unusual disability picture as to result in marked interference with employment beyond the assigned rating. There is no evidence that the Veteran's urinary frequency or pain due to urethral stricture has resulted in "marked" interference with employment or any periods of hospitalization during the pendency of this claim. Since the second prong is not met under the Thun analysis, the case does not meet the criteria for referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of the third prong, that is, to determine whether, to accord justice, an extraschedular rating must be assigned. Id. Thus, a determination that the Board incorrectly evaluated the facts as to the first prong of the Thun analysis would not serve to support referral for assignment of an extraschedular evaluation. Referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not required under 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An increased (compensable) evaluation of 20 percent for urethral stricture is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs