Citation Nr: 1317549	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  09-06 794A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a disability rating higher than 40 percent for chronic prostatitis and urethritis.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

A. Hinton, Counsel






INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)

The Veteran served on active duty from February 1952 to October 1953.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in June 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).

During the appeal, in a rating decision in February 2009, the RO increased the rating to 40 percent, effective from January 22, 2008, the date of claim.

In December 2012 the Board remanded the case for further development.   


FINDING OF FACT

The service-connected prostatitis is manifested predominantly by voiding dysfunction with a daytime voiding interval of once or twice per hour and night time voiding five or more times, and urine leakage requiring absorbent material be changed less than two times per day; there is no evidence of renal dysfunction or urine leakage or incontinence so severe as to require the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day.


CONCLUSION OF LAW
 
The criteria for a rating higher than 40 percent for chronic prostatitis and urethritis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.1, 4.115a, 4.115b, Diagnostic Code 7527 (2012).


The Veterans Claims Assistance Act of 2000 (VCAA)

On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

Letters addressed to the Veteran and dated between April 2008 and September 2010 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Veteran's service treatment records and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).



VA examinations were conducted during the pendency of the claim in April 2008, March 2010, September 2011, and March 2013.  The Veteran has not argued, and the record does not reflect, that the examinations were inadequate for rating purposes, as they generally considered the evidence of record including the Veteran's reported history, were based on an examination of the Veteran, noted pertinent history and all findings necessary for a proper determination in the matter, and explained the rationale for opinions offered.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  


REASONS AND BASES FOR FINDING AND CONCLUSION

General Rating Policy 

Disability evaluations are determined by the application of VA's Rating Schedule, 38 C.F.R. Part 4.  

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.




VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

If 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.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).  

Genitourinary system dysfunctions are considered to generally result in disabilities related to renal or voiding dysfunctions or infections, or a combination of both.  38 C.F.R. § 4.115a.  In rating a disability of the genitourinary system, only the predominant area of dysfunction is considered.

The Veteran's chronic prostatitis and urethritis are rated as 40 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7527.  Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, and postoperative residuals, are rated as voiding dysfunction or urinary tract infection, whichever is the predominant condition.  38 C.F.R. § 4.115b, Diagnostic Code 7527.  

If voiding dysfunction is predominate, the particular condition is rated as urine leakage, frequency, or obstructed voiding.  






Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence, requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day, warrants a 60 percent rating; which is the maximum rating assignable under 38 C.F.R. § 4.115a for urine leakage.

Because the maximum ratings assignable for symptoms of frequency and obstructed voiding are 40 and 30 percent, respectively, a higher rating is not available under respective criteria for the Veteran's chronic prostatitis and urethritis.

If urinary tract infection is the predominant condition, then an evaluation in excess of 40 percent is assignable for poor renal function under criteria for evaluation of renal dysfunction as follows:  

A 60 percent rating is warranted if the condition is productive of 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 warranted if the condition is productive of persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.

A 100 percent rating is warranted if the condition is productive of 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.  38 C.F.R. § 4.115a.






Evidence 

In April 2008 on VA examination, history included surgery, but no systemic symptoms due to dysuria, hematuria, renal colic, urinary leakage, or recurrent urinary tract infections.  There was a history of urinary symptoms of urgency, hesitancy or difficulty starting a stream, weak or intermittent stream, dribbling, straining to urinate, urine retention, and obstructed voiding (urinary retention), frequency of daytime voiding with an interval of every one to two hours, and nocturia of five or more voiding per night.  The report noted that catheterization was required on a constant basis, but dilations were not required.  

There was no history of: urinary tract stones, renal dysfunction or renal failure, acute nephritis, or hydronephrosis.  The report noted that the Veteran had a history of cardiovascular symptoms of fatigue, angina, dyspnea, and dizziness.  

On examination, the bladder and urethra were normal.  There was no peripheral edema.  The bulbocavernosus reflex was decreased.  The right and left dorsalis pedis pulses and the right and left posterior tibial pulses were normal.  The prostate examination revealed a single nodule.  It was noted that in  January 2008 a prostate biopsy showed nodular hyperplasia.  It was also noted that the Veteran retired in 1985.  The VA examiner stated that the nodular hyperplasia of the prostate did not effect the Veteran's usual daily activities.

In March 2010 on VA genitourinary, the medical history was essentially the same as that reported in April 2008.  The findings were essentially the same as reported in April 2008, except that prostate was generally enlarged.  The VA examiner stated that the Veteran had no urethritis or prostatitis. 

In September 2011 on VA examination, the Veteran complained of nocturia, voiding about four times a night.  A review of the records showed that chronic prostatitis was stable on medication, and urethritis had improved on medication.



The Veteran had urinary symptoms with frequency of daytime voiding at intervals of one to two hours and nocturia, voiding four times a night.  There was no history of recurrent urinary tract infections or renal dysfunction or renal failure or acute nephritis or hydronephrosis.  The diagnoses of were chronic prostatitis and no evidence of urethritis.

In March 2013 on VA examination, the Veteran stated that he had been treated once in the previous year for prostatitis.  He complained of urinary incontinence and urgency.  He stated that he used absorbent products to avoid urinary accident.  He denied dysuria.  He described urinary frequency as every hour and nocturia five to seven times a night.  He complained of weak stream and hesitancy.

It was noted that the Veteran was on medication.  The VA examiner stated that the Veteran had a voiding dysfunction due the prostate condition and suspected bladder hyperactivity.  The VA examiner stated that the voiding dysfunction caused urine leakage requiring absorbent material that must be changed less than two times a day.  The voiding dysfunction caused an increased urinary frequency of a daytime voiding and nighttime voiding five or more times.  The voiding dysfunction caused symptoms of obstructed voiding including hesitancy, slow or weak stream, and uroflowmetry peak flow rate of less than 10 cubic centimeters per second.

The VA examiner stated that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections.  The VA examiner stated that the Veteran had an enlarged prostate without nodules.

Analysis 

The predominant manifestation of the Veteran's chronic prostatitis and urethritis is voiding dysfunction and not urinary tract infections, and the rating criteria for voiding dysfunction are the appropriate criteria for rating the Veteran's disability.  38 C.F.R. § 4.115b, Diagnosis Code 7527.


Based on the foregoing evidence, the Veteran's chronic prostatitis and urethritis do not meet the criteria for a higher rating for voiding dysfunction.  The records do not show voiding dysfunction has been productive of urine leakage or incontinence that is so severe that the Veteran requires the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day, which are the criteria for a 60 percent rating.  38 C.F.R. § 4.115a.

On VA examination in March 2013, the VA examiner stated that voiding dysfunction caused urine leakage requiring absorbent material that must be changed less than two times per day.  Such symptomatology does not meet the criteria for a rating in excess of 40 percent for voiding dysfunction on the basis of urine leakage.  38 C.F.R. § 4.115a.

Although there is some evidence of voiding dysfunction involving frequency and obstructive voiding, the maximum rating assignable for frequency and obstructed voiding are 40 and 30 percent, respectively. Despite any related symptoms of frequency or obstructive voiding, a higher rating that the 40 percent is not available under the criteria for chronic prostatitis and urethritis.

In view of the foregoing, the Board concludes that chronic prostatitis and urethritis are appropriately rated as no more than 40 percent disabling.  As the preponderance of the evidence is against the claim for a rating higher than 40 percent, the benefit-of-the-doubt standard of proof does not apply, and a schedular rating over 40 percent is not warranted.  38 U.S.C.A. § 5107(b). 

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, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.






The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Comparing the Veteran's disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule under Diagnostic Code 7527 and the assigned schedule rating is adequate and referral for an extraschedular rating is not required. 

Total Disability Rating for Compensation based on Individual Unemployability

The claim for a total disability rating for compensation based on individual unemployability is not reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).

      (The Order follows on the next page.). 







ORDER

A disability rating higher than 40 percent for chronic prostatitis and urethritis is denied.




____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs