Citation Nr: 1323417	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  07-17 146	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an increased rating for post-operative fulguration of the urethra and bladder, evaluated as 40 percent disabling from March 17, 2003, through April 29, 2008. 

2. Entitlement to an increased rating for post-operative fulguration of the urethra and bladder, evaluated as 60 percent disabling from April 30, 2008.

3. Entitlement to an effective date earlier than March 17, 2003, for the assignment of a 40 percent disability evaluation for post-operative fulguration of the urethra and bladder. 

4. Entitlement to an effective date earlier than April 30, 2008 for the award of a total disability rating based on individual unemployability due to service connected disabilities (TDIU). 




REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to November 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2006, May 2007, and December 2008 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine and Detroit, Michigan, respectively.  Due to the current location of the Veteran's residence, the jurisdiction of his appeal remains with the RO in Detroit, Michigan.

These issues were remanded for further development by the Board in March 2011.  Requested development having been completed, the appeals are now properly before the Board for review.

The issue of entitlement to an effective date earlier than April 30, 2008, for the award of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.






FINDINGS OF FACT

1.  Prior to April 30, 2008, the Veteran's service-connected post-operative fulguration of the urethra and bladder was manifested by urinary leakage/incontinence necessitating the use of absorbent materials that were changed 2-4 times per day.

2.  From April 30, 2008, the Veteran's service-connected post-operative fulguration of the urethra and bladder was manifested by urinary leakage/incontinence necessitating the use of absorbent materials that were changed more than four times per day.

3.  The Veteran filed an informal claim for an increased rating for post-operative fulguration of the urethra and bladder that was received by the RO on March 17, 2003.

4.  There is no evidence of any earlier pending formal or informal claim, or supporting medical evidence that an evaluation in excess of 40 percent was warranted, within one year of March 17, 2003.


CONCLUSIONS OF LAW

1.  Prior to April 30, 2008, the criteria for an evaluation in excess of 40 percent for post-operative fulguration of the urethra and bladder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.115a, 4.15(b), Diagnostic Code 7512 (2012).

2.  From April 30, 2008, the criteria for an evaluation in excess of 60 percent for post-operative fulguration of the urethra and bladder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.115a, 4.15(b), Diagnostic Code 7512 (2012).

3. The criteria for an effective date earlier than March 17, 2003, for the assignment of a 40 percent rating for post-operative fulguration of the urethra and bladder have not been met.  38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.400, 3.501, 3.654, 3.700 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

The Veteran's claim for an earlier effective date arises from his disagreement with the assigned effective date for the award listed above.  Courts have held that 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).  In addition, it is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA.

With regard to the Veteran's increased rating claims, proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified in July 2006 and September 2008 of the criteria for establishing a rating increase, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in August 2006 and December 2008.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  Nothing more is required in this case.

As for the duty to assist, the Veteran's service treatment records have been obtained.  Pertinent post-service medical records have been obtained, to the extent available, to include current treatment records which were associated with the claims file pursuant to the March 2011 Board remand.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board therefore finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  Here, the Veteran was most recently afforded a VA examination to address his claim in April 2011, pursuant to the March 2011 Board remand.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examination report, and those reports preceding it, are adequate to decide the claims addressed in this section, as the reports included examination findings relevant to the issues at hand.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


II. Increased Rating

The Veteran claims that his currently-service-connected bladder dysfunction is more severe than indicated by his current disability ratings of 40 percent, from March 17, 2003, through April 29, 2008, and of 60 percent thereafter.  The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  In this case, the evidence of record does establish distinct time periods in which the issue on appeal resulted in symptoms that warrant staged ratings.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with    38 C.F.R. § 4.25 (2012).  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Where 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.  See 38 C.F.R. § 4.7 (2012).  

From March 17, 2003, to April 29, 2008, the Veteran's service-connected bladder dysfunction associated with post-operative fulguration of the urethra and bladder was rated as 40 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7512, pursuant to a May 2007 rating decision which granted the Veteran's claim for an earlier effective date.  Thereafter, the Veteran's disability is rated at 60 percent, which is the maximum schedular rating.  Under Diagnostic Code 7512, cystitis, chronic, including interstitial and all etiologies, infectious and non-infectious, is to be rated as voiding dysfunction.  38 C.F.R. § 4.115b, Diagnostic Code 7512 (2012). 

Voiding dysfunction is rated based on symptoms of urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a.  Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence is rated as follows: A 20 percent evaluation is warranted where the Veteran requires the wearing of absorbent materials which must be changed less than 2 times per day; a 40 percent evaluation is warranted for urine leakage/incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; and a 60 percent evaluation is warranted for urine leakage/incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.  38 C.F.R. § 4.115a (2012).

Urinary frequency is rated as follows: A 10 percent evaluation is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night; a 20 percent evaluation is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night; and a 40 percent evaluation is warranted for a daytime voiding interval less than one hour, or; awakening to void five or more times per night.  Id.

Obstructive voiding is rated as follows: A noncompensable evaluation for obstructive symptomatology with or without stricture disease requiring dilatation 1-2 times per year; a 10 percent evaluation is warranted for 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; and a 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization.  Id.

Prior to April 30, 2008

At the outset, the Board notes that it need not consider whether the a higher rating is warranted for this first time period in question based on urinary frequency or obstructive voiding, as the Veteran's currently assigned 40 percent is equal to or greater than the highest rating available under those diagnostic criteria.  Accordingly, the only basis upon which the Veteran may be entitled to a higher schedular rating prior to April 30, 2008, is if it was shown that the Veteran had urinary leakage or incontinence requiring the use of an appliance or the wearing of absorbent materials which required changing more than 4 times per day.  See 38 C.F.R. § 4.115a.

A review of the evidence reveals that during this period, a VA outpatient treatment report noted that the Veteran reported in November 2003 that he was having trouble urinating.  He reported that he used to micturate about 3-4 times per day, and that he was micturating, about 1-2 times per day.

The Veteran was afforded a VA examination to address his disability in December 2004.  At that time, it was noted that the Veteran suffered from bladder dysfunction, post cystoscopy, with a history dating back to 1967 (when he underwent a two-stage urethroplasty for urethral and bladder polyps with subsequent reconstruction).  It was further noted that the Veteran's difficulty with intermittent voiding and urgency required a cystoscopy in June 2003, revealing a patent urethra and obstructive prostate gland.  He underwent an additional cystoscopy in May 2004.

At the time of the examination, he complained of increased urinary frequency, 4-5 times per day, with nocturia almost every hour for less than one hour.  While medication was helping somewhat, he reported intermittent stream, split stream, narrow stream, and occasional hesitancy.  There was no history of intermittent or continuous catheterization.  

In a July 2005 VA outpatient report, he complained of urinary frequency.  Another report, from May 2005, noted that the Veteran presented with complaints of leakage, nocturia, dribbling, and incomplete voiding.  He voided 1-2 times per hour and wore 2-3 protective pads per day when he was active.  

During his next VA examination in September 2005, the Veteran reported that he had to sit down to urinate, and that he urinated about every 15 minutes.  During his July 2006 VA examination, he indicated that he was urinating frequently, had cessation of his stream prior to emptying his bladder, and that he must sit down to use the bathroom due to spray.  He noted that he wore undergarments on a daily basis to combat leakage, though he did not wear them at night.  He indicated, however, that he was incontinent at night and washed his sheets daily.  He felt that his disability had worsened over the prior several years.

VA treatment reports from September and October 2006 indicated that the Veteran voided 1-2 times per hour.  Additional cystoscopy procedures were performed in October 2006 and June 2008.

From April 30, 2008

The Veteran filed a claim for an increased rating for his bladder dysfunction, which was received at the RO on April 30, 2008.  Thereafter, a September 2008 VA examination revealed that the Veteran continued to have symptoms of some hesitancy and incomplete emptying.  Nocturia was now every 1-2 hours, rather than every 15 minutes, though he was experiencing increased leakage following his most recent procedure.  The Veteran reported using 8-12 pads daily.  In a statement from the Veteran received later that month, he indicated that he was using 12+ pads per day.

During his most recent VA examination, conducted in April 2011 (provided close in time following an additional cystoscopy performed in March 2011), the Veteran reported self-catheterization each morning, and that he used the bathroom 1-2 times per hour.  He also reported urgency, hesitancy starting his stream, dysuria, dribbling, straining to urinate, hematuria, urine retention, frequency, leakage, and nocturia (voiding 5+ times per night).  He stated that he changed his absorbent pads 4+ times per day.

Analysis

Prior to April 30, 2008, there is no medical evidence of record, or communication from the Veteran, to demonstrate urine leakage/incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.  The first mention of protective pads occurred in July 2005, and at that time he changed them 2-3 times daily.  In September 2005, daily use of pads was reported, though the number of pads per day was not disclosed.  As such, a higher rating is not warranted for the Veteran's disability pursuant to Diagnostic Code 7512 during this appellate period.

It was not until September 2008 that the Veteran reported changing pads 8-12 times per day.  Later that month, he reported changing them more than 12 times daily.  However, and as noted above, 60 percent is the maximum schedular rating applicable to the Veteran's symptoms.  While schedular ratings are available for urinary frequency and obstructive voiding, both of which were noted repeatedly, the maximum schedular ratings for these manifestations are 30 percent and 40 percent, respectively.  As such, while the Board is very sympathetic to the Veteran's severe symptomatology, a higher rating is simply not available under any applicable Diagnostic Code from April 30, 2008.  

In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service-connected disability.   In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g., experiencing leakage, frequency, and nocturia.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  In this instance, however, it is primarily the Veteran's own reporting which is used as the basis for his evaluation, and the Veteran did not report the use of more than 4 absorbent pads per day prior to April 30, 2008.  While his use of pads increased tremendously after that date, his 60 percent rating is the highest available per VA regulations.  

While very sympathetic to the Veteran's situation, the above determination is based upon consideration of applicable rating provisions.  It should also be noted that while there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis, TDIU has been granted from April 30, 2008.  As such, the affect on his employability has certainly been accounted for from that date.  See 38 C.F.R. § 3.321(b)(1) (2012).  Prior to April 30, 2008, while the symptoms of his disability have been accurately reflected by the schedular criteria, the Board has elected to refer the issue of entitlement to a TDIU during this period to the Director of Compensation and Pension, as explained in great detail below.    

Further, the Board points out that his disability rating encompasses a degree of occupational impairment relative to that rating.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture, for this disability alone, requires the assignment of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  

In light of the foregoing, the Board finds that an evaluation in excess of 40 percent for the Veteran's bladder dysfunction prior to April 30, 2008, and in excess of 60 percent thereafter, is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  As the preponderance of the evidence is against the Veteran's claim for an increase, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

III. Earlier Effective Date

In this case, the Veteran and has claimed that he is entitled to an effective date earlier than March 17, 2003, for the award of a 40 percent evaluation for his service-connected bladder dysfunction.  The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the latter.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C.A. § 5110(b)(2); see also 38 C.F.R. § 3.400(o); 38 C.F.R. § 3.157.

In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of 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); VAOPGCPREC 12-98 (1998).

In determining whether or not an increase was factually ascertainable during the year prior to receipt of an increased rating claim, the Board will review the entirety of the evidence of record.  Hazan v. Gober, 10 Vet. App. 511, 520 (1997) (also holding that for effective date purposes, the claim must be the application on the basis of which the rating was awarded); Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application).

The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2012).  Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r) (2012).

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a) (2012).

In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought.  See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it").

To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error.  Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992).  The Court has held, however, that the Board is not required to conjure up issues that were not raised by an appellant.  Brannon v. West, 12 Vet. App. 32 (1998).

In this case, the Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date prior to March 17, 2003, is not warranted for the assigned 40 percent rating for the Veteran's service-connected bladder dysfunction.  While an evaluation of 20 percent has been in effect for this disability since January 1, 1973, the evidence of record does not demonstrate that the Veteran filed a claim for an increased rating from that date, until his informal claim for an increase which was received on March 17, 2003.

Post-service VA and private treatment records demonstrate recurring treatment for bladder dysfunction, to include multiple surgical procedures.  However, when looking to the period prior to March 17, 2003, there is no evidence of any earlier pending formal or informal claim for an increased rating for bladder dysfunction between the effective date of his 20 percent rating and his March 2003 informal claim.  The Board finds that the earliest date of receipt of any increased rating claim for bladder dysfunction by the RO was on March 17, 2003, which is the currently-assigned effective date.  

Moreover, there is no medical evidence of record to demonstrate that the Veteran's disability picture approximated the criteria for a higher evaluation within one year of the March 17, 2003 informal claim.  As noted in the preceding section, the Veteran's disability did not require the use of more than 4 absorbent pads per day until 2008.

While correspondence was received from the Veteran prior to March 1, 2003, these letters did not in any way request an increased evaluation for the disorder on appeal.  A statement received in October 2001 referred to erectile dysfunction and sterility.  A notice of disagreement was received with regard to the 1973 rating; however, this decision became final and was not subsequently appealed.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  

For the foregoing reasons, the record does not provide a basis for assignment of an effective date earlier than March 17, 2003, for the assigned 40 percent rating for the Veteran's service-connected bladder dysfunction.  The Veteran has also not properly raised an allegation of CUE with any prior final RO or Board decision, and because no claim was filed prior to March 2003 for an increased rating for bladder dysfunction, his claim must be denied.  Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply.  See Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Entitlement to an increased rating for post-operative fulguration of the urethra and bladder, evaluated as 40 percent disabling from March 17, 2003, through April 29, 2008, is denied. 

Entitlement to an increased rating for post-operative fulguration of the urethra and bladder, evaluated as 60 percent disabling from April 30, 2008, is denied.

An effective date prior to March 17, 2003, for the award of a 40 percent rating for bladder dysfunction is denied.


REMAND

Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  

The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.  38 C.F.R. § 4.16(a).  

Prior to April 30, 2008, service connection was in effect for bladder dysfunction, rated between 20 percent and 40 percent disabling, and a left orchiectomy, rated at 30 percent disabling.   During this period, the Veteran's combined disability rating was, at most, 60 percent (excluding one period reflecting a temporary total evaluation due to convalescence from August 1, 2006, to November 30, 2006).

In cases such as this one, where the Veteran claims unemployability by reason of service-connected disabilities but does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for the period prior to April 30, 2008, the rating board is authorized to refer the case to the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation.  38 C.F.R. § 4.16(b). 

The Board finds that evidence of record does in fact suggest that the Veteran may have been rendered unemployable during the period in question.  As noted above, the Veteran, beginning in 2005, was required to use several absorbent pads per day as a result of urinary leakage and frequency.  The Veteran has indicated that, not only is this a taxing situation, physically, but that it is a source of embarrassment that often results in staying at home.  Further, he has undergone multiple procedures in an effort to alleviate his severe symptoms, each requiring time for the procedure and recovery.  

Turning specifically to the issue of unemployability, VA Vocational Rehabilitation records, requested by the Board in March 2011, indicate that the Veteran was denied entrance into the program, as it was deemed that the severity of the Veteran's disability did not make it feasible for him to sustain suitable employment.  See Letter, May 30, 2007.  The letter went on to indicate that he would be unable to succeed in a program of training or education, and that he would not be able to find a job which matched his skills.  It was noted that the Veteran was a laborer by history, and that pursuit of employment at that time was not feasible.  

The Counselor indicated in November 2008 that, at the time of the 2007 determination, he relied on the fact that physical limitations imposed by his service-connected disabilities were an impairment to employability.  It was also determined that the Veteran lacked transferable vocational skills which would be compatible with his disability limitations.  As a rating of 40 percent for bladder dysfunction alone had been in effect since 2003, indicating severe symptomatology, whether the Veteran was capable of finding and securing gainful employment must be examined in greater detail.

Because the Veteran has exhibited severe symptomatology associated with his service-connected disabilities which would seem to make sedentary office work difficult, and because the Veteran was historically a laborer (also certainly hindered by these disabilities), the Board finds that a referral to the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation is warranted in this case.

Accordingly, the case is REMANDED for the following action:

Refer the Veteran's TDIU claim, for the period prior to April 30, 2008, to the Director, Compensation and Pension Service, for extra-schedular consideration.  If the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case, provided an adequate opportunity to respond, and the appeal should thereafter be returned to the Board for further appellate review.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs