Citation Nr: 1319735 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-44 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected residuals of prostate cancer. 2. Entitlement to service connection for shrapnel wound to the jaw. 3. Entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression, and posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection due to various psychiatric diagnoses has been combined into one issue as indicated on the title page. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The issues of entitlement to service connection for shrapnel wound to the jaw, an acquired psychiatric disorder, hypertension, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The preponderance of the evidence shows that the Veteran's service-connected residuals of prostate cancer have resulted in daytime voiding interval of three to four times per day, and awakening to void one to two times per night; however, renal dysfunction, the usage of appliance or absorbent materials for urine leakage, obstructed voiding, and urinary tract infections are not shown. CONCLUSIONS OF LAW The criteria for a rating in excess of 10 percent for residuals of prostate cancer are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The present case involves a "downstream" issue, as the initial claim for service connection was granted in the rating decision on appeal, and the Veteran disagrees with the evaluation assigned. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. In such a case, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also 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). As the Veteran has not alleged any prejudice, that burden has not been met. Accordingly, the Veteran is not prejudiced by a decision on the appeal, regardless of the timing or content of the notice provided by the RO. VA has obtained service treatment records and post-service treatment records, assisted the appellant in obtaining evidence, afforded the appellant a physical examination, obtained a medical opinion, and offered the appellant an opportunity to testify at a hearing. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis 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 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 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 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); 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 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The September 2008 rating decision awarded service connection for residuals of prostate cancer. A 10 percent evaluation was assigned under Diagnostic Codes 7528-7527 effective February 26, 2008. Diagnostic Code 7528 directs that following the cessation of treatment for malignant neoplasms of the genitourinary system, the residuals will be rated as voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7527, for prostate gland injuries, hypertrophy, infections and postoperative residuals, will be rated as voiding dysfunction or urinary tract infection, whichever is predominant. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence are rated as follows: A 20 percent rating is warranted if the evidence shows that the Veteran is required to wear absorbent materials which must be changed less than 2 times per day. If absorbent materials must be changed 2 to 4 times per day, a 40 percent rating is warranted. If an appliance is required, or absorbent materials must be changed more than 4 times per day, a 60 percent rating is warranted. 38 C.F.R. § 4.115a. Regarding frequency, daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. Daytime voiding between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115a. For obstructed voiding with urinary retention requiring intermittent or continuous catheterization, a 30 percent rating is warranted. With marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post void residuals greater than 150 cc; uroflowmetry markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every 2 to 3 months; a 10 percent evaluation is warranted. Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year, a noncompensable evaluation is warranted. Id. Recurrent symptomatic urinary tract infection requiring drainage/frequent hospitalization (greater than 2 times per year), and/or requiring continuous intensive management warrants a 30 percent evaluation. Urinary tract infection requiring long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent evaluation. Id. The Veteran was afforded a VA genitourinary examination in August 2008. He reported no bladder issues, and denied any urinary hesitancy, dysuria, or incontinence. He stated that he does have to get to the bathroom quickly when he has the urge to urinate. He reported daytime voiding interval of three to four times per day, and awakening to void one to two times per night. Private treatment records show the Veteran was diagnosed with prostate cancer in 1997 and underwent a radical retropubic prostatectomy in 2001. The records do not show findings concerning residual symptomatology during the course of the claim. Although he appealed the evaluation, the Veteran has not argued that his symptoms are worse than as rated or that his symptoms have worsened since the 2008 VA examination. Upon review of the record, the evidence shows that the Veteran does not meet the criteria for a higher rating for residuals of prostate cancer. His symptomatology falls squarely within the 10 percent criteria for voiding dysfunction. He reported that he voids three to four times per day and awakens to void one to two times per night. An increased, 20 percent, rating requires daytime voiding between one and two hours, or awakening to void three to four times per night which has not been shown. The Veteran could also receive higher ratings if he had renal dysfunction, obstructed voiding or urinary tract infections of a certain severity and frequency. See 38 C.F.R. § 4.115a. However, such symptomatology has not been alleged or shown by the evidence. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim for a disability rating higher than 10 percent for residuals of prostate cancer during the entire course of the appeal. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an increased rating for the residuals of prostate cancer is denied. REMAND When, as in the instant case, there is evidence that the Veteran engaged in combat, satisfactory lay or other evidence of an injury sustained in the line of such duty shall be accepted as sufficient proof of in-service incurrence if the evidence is consistent with the circumstances of service, even when there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002). However, competent evidence demonstrating present disability or a nexus between present disability and some remote injury or disease of active service is still required. See Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997) ("[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition"). Although Section 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and active service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The Veteran's DD Form 214 reflects that he received a Combat Infantry Badge (CIB) which demonstrates his combat exposure. The record does not reflect that he received a Purple Heart medal. He stated that he sustained a shrapnel wound to the jaw in August 1968 and was treated at a field hospital. His STRs are silent for any such disability. A service medical entry in December 1967, prior to going to Vietnam, notes a resolving abscess of the left mandible. Therefore, an examination is needed to determine if the Veteran has a current disability of the jaw due to service. Regarding his psychiatric service connection claim, as a combat Veteran, an in-service stressor is conceded. However, he has not been afforded a VA mental disorders examination. His appeal for service connection of hypertension is inextricably intertwined with his psychiatric claim, inasmuch as a grant of service connection for the psychiatric disability could affect the outcome of the hypertension claim, as he claims that his hypertension was caused or aggravated by his psychiatric disorder. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). See also Kellar v. Brown, 6 Vet. App. 157 (1994) and Harris v. Derwinski, 1 Vet. App. 180 (1991). And therefore, further consideration of this claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991). Regarding the hearing loss claim, the examiner who conducted the December 2009 audiological examination opined that it was not likely that the Veteran's hearing loss was related to military noise exposure because he entered and exited service with normal hearing. The Veteran is not required to show a hearing loss disability for VA purposes during service. The proper inquiry is not whether a hearing loss disability for VA purposes was shown during service; rather, it is whether is current hearing loss disability may be related to his in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the examiner did not explain why normal hearing at discharge indicates that current hearing loss is not related to noise exposure during service. Therefore, an additional opinion is needed prior to a resolution of this claim. On his October 2009 substantive appeal, he stated that he was receiving ongoing treatment for his PTSD, hypertension, and hearing loss. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all medical care providers, both VA and private, who have treated him for jaw problems, psychiatric conditions, hypertension, and bilateral hearing loss. After securing the necessary release, the RO/AMC should request any relevant records identified. If any requested records cannot be obtained, the Veteran should be notified of such. 2. After the above has been completed to the extent possible, the Veteran should be afforded a VA dental examination. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary, including x-ray, should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should clearly identify any jaw disorders found. The examiner should also indicate whether there is any scar or other residual of an alleged shrapnel wound. If a jaw disorder is found the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that it that arose during service or is otherwise related to service, to include the Veteran's alleged shrapnel wound to the jaw in 1968 or the left mandible abscess treated in 1967. The examiner should explain the reasons for the conclusion reached. 3. The Veteran should be afforded a VA mental disorders examination to be performed by a psychiatrist or psychologist. The purpose of the examination is to determine whether the Veteran has a current psychiatric disorder, to include PTSD, depressive disorder, or anxiety disorder, that arose during service or is otherwise related to service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, including psychological testing, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all psychiatric disorders found. If PTSD is diagnosed, the examiner should indicate the stressor(s) upon which the diagnosis is based. With respect to each diagnosed psychiatric disability (other than a personality disorder), the psychiatrist should opine as to whether it is at least as likely as not (50 percent probability or greater) that the current psychiatric disability arose during service or is otherwise related to any incident of service. The examiner should explain the reasons for the opinions reached. 4. Return the claims file to the December 2009 VA audiological examiner, if available. The December 2009 examination report and the claims file should be reviewed. Thereafter, the examiner should provide an addendum opinion explaining why normal audiological findings in service establish that the Veteran's current hearing loss disability is not related to noise exposure during service. If following additional review the examiner now believes the hearing loss is related to service, the examiner should so state and explain why. If the original examiner is not available, the claims file should be forwarded to an examiner of similar or greater qualifications to provide the requested opinion. If a new examination is deemed necessary to respond to the question posed, one should be scheduled. 5. After the above has been completed, the claim for service connection for a psychiatric disability is granted, then additional development concerning the claim for hypertension on a secondary basis should be accomplished, to include scheduling an examination if deemed necessary. 6. Thereafter, the remaining claims should be readjudicated. If any claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give an appropriate period of time to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs