Citation Nr: 1328430 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 07-15 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for service-connected benign prostatic hypertrophy (BPH), to include a rating in excess of 40 percent prior to September 1, 2009. 2. Entitlement to a total disability rating based on individual unemployability. (TDIU). ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1968 to June 1988. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. These claims were previously before the Board on two occasions and remanded each time for additional development. Specifically, in December 2008 the Board remanded these issues in order to obtain records from the Veteran's vocational rehabilitation as well as provide additional notice to the Veteran. In May 2009 these issues were again remanded in order to obtain updated VA treatment records as well as provide the Veteran with a VA examination. The Board finds all requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence does not establish the Veteran required wearing absorbent materials which must be changed more than four times per day prior to September 1, 2009. 2. The evidence does not establish the Veteran had renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular at any point during the period on appeal. 3. The Veteran's service-connected disabilities, including benign prostatic hypertrophy, bilateral hearing loss, cataracts of both eyes, tinnitus, and seborrheic dermatitis, render him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for benign prostatic hypertrophy, to include a rating in excess of 40 percent prior to September 1, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.115a, 4.115b (2012). 2. The criteria for total disability based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a), 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an increased rating for his service- connected benign prostatic hypertrophy (BPH). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever 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 Veteran's condition is currently rated 40 percent disabling prior to September 1, 2009 and 60 percent disabling after that date. His condition is rated under Diagnostic Code 5227 which provides prostate gland hypertrophy should be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b. However, the maximum schedular rating for urinary tract infection is 30 percent, less than the Veteran's condition was rated throughout the period on appeal. As such, the Veteran's condition will continue to be rated under voiding dysfunction. Under voiding dysfunction a 40 percent rating is assigned when the condition requires wearing absorbent materials which must be changed two to four times per day. A maximum 60 percent rating is assigned when use of an appliance is required or wearing absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. The Veteran filed his current claim in February 2006. As such all records since one year prior have been reviewed and considered, and relevant information is summarized below. The Board will first address the Veteran's condition prior to September 1, 2009. BPH prior to September 1, 2009 In a December 2005 VA treatment record the Veteran reported urinary incontinence and his care provider noted "there are times when he wets his underpants." In April 2006 the Veteran was provided with a VA examination regarding his prostate condition. During this exam the Veteran reported urinary incontinence, including remaining urine after voiding. The Veteran stated he wore absorbent material that must be changed two to four times per day. The Board finds the results from this examination reflect the Veteran met the schedular criteria for a 40 percent rating by requiring absorbent materials to be changed two to four times per day. However, the Veteran did not meet the criteria for a higher rating of requiring absorbent materials be changed more than four times per day. In his April 15, 2009 written statement the Veteran stated he told his physician that he must change his daily adult diaper more than four times a day, suggesting he met the criteria for the next higher rating. The Board notes that as a lay person the Veteran is competent to report what comes to him through his senses, including the requirement to change an adult diaper or other absorbent materials more than four times a day. Layno v. Brown, 6 Vet. App. 465 (1994). However in a VA treatment record from the following week the Veteran's primary care provider noted the Veteran changed his diaper pads four times a day, contradicting the Veteran's own statement from one week earlier. Moreover, the Board notes this statement was made during the course of his medical treatment, while the statement the week prior was made for compensation purposes. The Court of Appeals for Veterans Claims (Court) has determined that the Board may properly assign more probative value to lay statements made for treatment purposes rather than statements made for compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). As such, the Board finds the Veteran's lay statements made during treatment are more probative and establish the Veteran continued to require changing of his absorbent materials only four times per day. Accordingly, the Board finds the Veteran's BPH continued to merit a 40 percent rating during this period. Excess of 60 percent after September 1, 2009 In September 2009 the Veteran was provided another VA examination for his prostate condition. The examiner noted the Veteran had urinary leakage and incontinence which required the Veteran to wear absorbent material that must be changed more than four times per day. As such, the Board finds the results of this examination establish the Veteran's service-connected BPH warranted a 60 percent rating for voiding dysfunction. 38 C.F.R. § 4.115a. The Board notes a 60 percent rating is the schedular maximum benefit that may be assigned for voiding dysfunction. Id. Under VA regulations a higher 80 percent rating for renal dysfunction is warranted if there are persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. However, the evidence of record does not establish the Veteran experienced any of these symptoms. As such, the evidence does not establish the Veteran's condition warranted a higher 80 percent rating for renal dysfunction. Therefore, the Board finds the Veteran's service-connected BPH continues to warrant a 60 percent rating, the maximum benefits that may be obtained under the schedular rating criteria for voiding dysfunction. 38 C.F.R. § 4.115a. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's disability that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of urinary incontinence which required frequent changing of adult diapers or other absorbent materials. These symptoms were specifically contemplated in the schedular ratings that were assigned. As such, the Board believes that the schedular rating criteria adequately describes the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Based on all of the foregoing the Board finds that the Veteran's service-connected BPH warranted a rating not to exceed 40 percent prior to September 1, 2009 and a rating not to exceed 60 percent after this date. Accordingly, the Veteran's claim for an increased rating is denied. TDIU The Veteran is also seeking total disability based on individual unemployability (TDIU). Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In this case the Veteran has a combined rating of 70 percent during the period on appeal prior to September 1, 2009, and a combined rating of 80 percent after that date, including ratings for BPH, hearing loss, cataracts of the eyes bilaterally, tinnitus, and seborrheic dermatitis (a skin condition). Additionally the Veteran has a single condition, his BPH discussed above, rated at least 40 percent throughout the period on appeal. Accordingly, the Veteran meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). As such, the Veteran may be eligible for total disability rating if the VA determines that he is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). The record reflects the Veteran has not worked since 1997. In his May 2007 written substantive appeal the Veteran stated he was terminated in 1997 because his back condition made him unable to work. His testimony is supported by an April 1998 letter from the California Public Employees' Retirement System informing the Veteran he is eligible for disability retirement due to his back condition. The Board notes the Veteran is not service-connected for his back condition. However, the Veteran may still qualify for TDIU if he is unemployable solely on account of his service- connected disabilities even if he has non-service connected disabilities that may also render him unemployable. In July 2009 a private physician examined the Veteran and opined he is "no longer capable of obtaining or retaining a substantially gainful employment" based on his service- connected disabilities including: BPH, hearing loss, tinnitus, and seborrheic dermatitis, providing evidence in support of the Veteran's claim. In February 2010 the Veteran was provided a VA examination to determine the impact of his service-connected conditions on his ability to seek employment. The examiner opined that the combined effects of the Veteran's service-connected BPH and skin condition were at least as likely as not to "impair him sufficiently to render him unable to secure or maintain a substantially gainful occupation." The examiner explained his BPH with urinary incontinence required frequent bathroom breaks, interrupting his daily activities. This condition also limited the Veteran's lifting of moderate to heavy objects since such lifting would aggravate the need to "eliminate his urinary bladder." An addition his skin condition caused "considerable amount of itching and scratching." The examiner explained both of these conditions would limit the Veteran's efficiency and ability to handle and focus on work activities, whether in an office environment or not. Additionally, his skin condition was aggravated by warm weather, sweating, and physical exertion, suggesting the Veteran would also face difficulties working outside. The Board finds this examiner provided a clear, unequivocal opinion and fully explained his rationale. As such, the Board finds this VA examination report provides highly probative evidence in support of the Veteran's claim. The Board acknowledges the record also includes an additional VA examination report from February 2012. This examiner opined that the Veteran's service-connected conditions alone "less likely as not render him unable to obtain substantially gainful employment." The examiner continued that the Veteran's non service-connected conditions, including hypertension with retinopathy, cervical spondylosis, back pain, arthritis, and anxiety disorders "produce additional if not more impairment in his functional abilities." However, as discussed above, the Veteran may still qualify for TDIU if his service-connected conditions render him unemployable even if he has additional non-service connected conditions which would also render him unemployable. Therefore the record contains medical opinion evidence supporting and against the Veteran's claim. However, the Board finds the more probative evidence supports the Veteran's claim. In addition VA regulations provide that reasonable doubt must be resolved in the Veteran's favor. 38 U.S.C.A. § 5170; 38 C.F.R. § 3.102. Accordingly, the Board finds the medical evidence establishes the Veteran is unable to secure substantially gainful occupation due to his service-connected disabilities. The Board notes the record reflects the Veteran has significant experience and training in automotive and mechanical training. However, the medical and lay evidence of record suggests the Veteran's service-connected conditions (as described above) are such that he is unable to secure and follow a substantially gainful occupation for which he has experience and training. Additionally, the 2010 VA report suggests the Veteran's service-connected conditions would also hinder continued employment in an office or physical labor environment. Based on the foregoing, the Board finds the preponderance of the evidence shows that the Veteran's service-connected conditions, including BPH and his skin condition, render him unable to follow a substantially gainful occupation. As he cannot secure and follow a substantially gainful occupation due to service-connected disabilities the remaining criterion for TDIU are met and his appeal must be granted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in March 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above, including the requirements for a successful claim for TDIU. The Board acknowledges this letter did not provide the notice required by the Dingess court. However, such notice was provided by an additional letter in February 2008. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although all required notice was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. In this regard, the VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, the Veteran has not voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for an increased rating for his service- connected benign prostatic hypertrophy (BPH) is denied. The Veteran's claim for total disability based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs