Citation Nr: 1333157 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-23 322A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus with early nephropathy and hypertension. 2. Whether the reduction from 100 percent to 20 percent, effective May 1, 2008, for residuals of prostate cancer, status post radical prostatectomy, was proper, to include entitlement to a rating in excess of 20 percent. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active service from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDINGS OF FACT 1. The Veteran's diabetes mellitus requires the daily use of oral medications and a restricted diet, but does not require regulation of activities. 2. The Veteran's many blood pressure measurements do not reveal diastolic pressures of predominantly 100 or more, or systolic pressures of predominantly 160 or more. 3. The Veteran has received no treatment for nephropathy and there is no indication that he has ever experienced acute nephritis. 4. In July 2006, the Veteran underwent a radical prostatectomy. 5. In an October 2006 rating decision, the RO granted service connection for residuals of prostate cancer and assigned a 100 percent rating effective on June 16, 2006; this decision and the notice that accompanied it notified the Veteran that he would be afforded a future examination to determine the severity of his service-connected prostate cancer residuals. 6. In a June 2007 rating decision, the RO proposed to reduce the Veteran's disability rating for prostate cancer to a 20 percent evaluation following a waiting period exceeding 60 days. 7. The reduction was implemented by a February 2008 rating action, effective on May 1, 2008. 8. At the time of the reduction of the 100 percent disability evaluation, the service-connected prostate cancer was shown to be in clear remission with no recurrence or metastasis of the prostate cancer. 9. From May 1, 2008, the Veteran's residuals of prostate cancer status-post prostatectomy manifests as daytime voiding every one to two hours and nocturia three to four times per night; the record is negative for obstructive voiding, or the use of absorbent materials. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus with early nephropathy and hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). 2. The reduction of the disability rating for residuals of prostate cancer, status-post prostatectomy, by the February 2008 rating decision, was proper; the criteria for a reduction in the rating for such disability from 100 percent to 20 percent have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2013). 3. The criteria for a rating in excess of 20 percent for residuals of prostate cancer status-post prostatectomy, from May 1, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With regard to the Veteran's diabetes claim, this appeal arises from the Veteran's disagreement with the initial rating evaluation following the grant of service connection. The VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because the other forms of notice-such as notice contained in the rating decision and statement of the case (SOC) have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). As to the duty to assist, VA has associated with the claims folder the Veteran's VA medical records and private medical records. The Veteran has been afforded VA medical examinations. The Veteran has not asserted, and the record does not indicate, that there are any additional pertinent records outstanding. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. With regard to the Veteran's prostatectomy claim, the Board notes that this appeal stems from disagreement with a 38 C.F.R. § 3.105(e) reduction and is not based on a claim or application for benefits. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements, which will be discussed in greater detail below. See 38 C.F.R. § 3.105(e), (i). For this reason, the Board concludes that VCAA duties to notify and assist do not apply to this appeal. Nevertheless, the Board notes that the RO did assist the Veteran in developing his claim that the 20 percent disability rating assigned should be higher by obtaining available medical evidence and by providing VA examinations. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Diabetes Mellitus The June 2007 rating decision on appeal granted the Veteran service connection and a 20 percent rating for diabetes mellitus, effective from June 2004. The Veteran asserts that he is entitled to a rating in excess of the initial 20 percent rating assigned. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted. As explained below the Veteran has not met the criteria for a rating in excess of 20 percent at any time since the grant of service connection. A February 2000 VA treatment record notes that the Veteran had been diagnosed with diabetes four years previously and that he had been started on oral medications to treat it three months previously. On VA examination in April 2007, the Veteran complained of intermittent numbness of both great toes. He denied eye or skin problems. He stated that he had a nonunion fracture of his right ankle. Treatment of the Veteran's diabetes was with oral medication. The VA examiner noted that there had been no episodes of hypoglycemic reactions or ketoacidosis and that the Veteran's was not restricted in ability to perform strenuous activities. The Veteran had been instructed to follow a restricted or special diet. It was noted that the Veteran had genitourinary symptoms related to diabetes including frequency and erectile dysfunction. The examiner noted that ophthalmologic examination in October 2006 revealed no diabetic retinopathy. The examiner noted early nephropathy. In October 2007, the Veteran complained of blurred vision. He was provided a VA eye examination and the examiner noted incipient cataracts and non insulin dependent diabetes mellitus (NIDDM) with no retinopathy. An October 2008 VA treatment record notes that the Veteran reported that his fasting blood sugars had elevated since he stopped exercising. The VA medical provider advised that Veteran to walk on his treadmill daily and to join a water aerobics class. On VA examination in August 2010, the Veteran reported early diabetic nephropathy and numbness in his great toes. He stated that his great toe and second toe in both feet went numb at night. The VA examiner noted that there had been no episodes of hypoglycemic reactions or ketoacidosis and that the Veteran's was not restricted in ability to perform strenuous activities. The Veteran had been instructed to follow a restricted or special diet. It was noted that an eye examination the previous month indicated no retinopathy. There were no diabetic skin abnormalities. The examiner stated that Veteran had early diabetic nephropathy. The VA examiner further stated that the Veteran had hypertension and coronary artery disease due to his diabetes. He opined that the erectile dysfunction was not a complication of the diabetes, but of the prostatectomy. The VA examiner opined that the Veteran's diabetes had no effect on the Veteran's usual daily activities. A November 2010 VA treatment record indicates that the Veteran was on oral medications for his diabetes. 38 C.F.R. § 4.119 , Diagnostic Code 7913 provides for ratings based on diabetes mellitus. Diabetes that requires insulin and a restricted diet or oral hypoglycemic agents and restricted diet warrants a 20 percent evaluation. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability rating requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. Regulation of activities is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). The pertinent inquiry, therefore, is whether there is objective and probative evidence that the Veteran's diabetes mellitus requires restricted activities warranting an increased rating. The Board concludes there is not. Having carefully considered the evidence pertaining to the Veteran's diabetes mellitus, the Board finds that an evaluation in excess of 20 percent for diabetes mellitus is not warranted. In that regard, the Board observes that the Veteran does not treat his diabetes with insulin and he is not restricted in his ability to perform strenuous activities due to his diabetes mellitus. In this case, there is no medical evidence indicating that restriction of activities has been prescribed by a medical provider in order to help control the Veteran's diabetes. The Veteran has not asserted that his diabetes necessitates restriction of activities, and the April 2007 and August 2010 VA examiners specifically stated that the Veteran was not restricted in his ability to perform strenuous activities. Indeed, in October 2008, in response to the Veteran's cessation of exercising, his medical treatment provider urged him to walk on his treadmill daily and participate in aerobic activity. Thus, he has not been advised to avoid strenuous occupational and recreational activities. To summarize, at no time during the appeal period was there objective manifestation of diabetes mellitus to the extent that a regulation of activities or insulin was required. The clinical records are devoid of notation by any treating physician that activities were in need of regulation, and in fact, the physicians have counseled the Veteran on diet and exercise to control weight. Thus, without restricted activities or the need for insulin, the criteria for a 40 percent rating for the underlying diabetes disability have not been met. 38 C.F.R. § 4.119. The 20 percent rating presently assigned most closely approximates the severity of the Veteran's diabetes as evidenced by the clinical records and VA examination reports. Again, Note (1) to Diagnostic Code 7913 instructs the rating board to separately rate compensable residuals of diabetes. The Veteran was shown to have peripheral neuropathy of the left and right lower extremities due to his service-connected diabetes mellitus. By way of a December 2010 rating decision, separate compensable ratings were assigned for the Veteran's bilateral lower extremity peripheral neuropathies. Symptoms related to lower extremity peripheral neuropathy are therefore not for consideration in assigning an evaluation for his diabetes mellitus with early nephropathy and hypertension. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Veteran has not filed a notice of disagreement with the ratings assigned for the bilateral lower extremity peripheral neuropathy, and the Board will not discuss this aspect of the claim further. The Board recognizes that the August 2010 VA examiner opined that the Veteran had coronary artery disease (CAD) due to his diabetes. In November 2010 the RO granted the Veteran service connection for CAD due to the Veteran's presumed exposure to herbicides in Vietnam. The Veteran has not appealed the current 30 percent rating assigned for CAD and the Board has no reason to address CAD at this time. The Board notes that the August 2010 VA examiner also opined that the Veteran had hypertension due to his diabetes. However, the Board finds that this disability is less than 10 percent disabling and is thus considered part of the diabetic process under Diagnostic Code 7913. Under Diagnostic Code 7101, a 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). The record reveals that the Veteran was noted to have labile blood pressure in October 1999, that he was noted to have hypertension in November 2003, and that he has been on continuous medication for hypertension since at least February 2004. However, that Board has reviewed all of the blood pressure readings in the private and VA treatment records and found none with a diastolic pressure of 100 or more, or with systolic pressures anywhere near 160. Thus, hypertension has not been manifested to a level of 10 percent during the course of appeal. Thus, the Veteran does not meet the criteria for a separate compensable rating for hypertension, and it is deemed part of the underlying diabetes process. The Board also notes that the April 2007 examiner found the Veteran to have early diabetic nephropathy. The August 2010 VA examiner noted that the Veteran has had normal urine microalbumin/cr since later 2008, and that he never had serum creatinine over 1.4. For a compensable rating for renal dysfunction, the evidence must show albumin constant or recurring with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. 38 C.F.R. § 4.115a. The records do not reveal albumin constant or recurring with hyaline and granular casts or red blood cells. As noted above, the Veteran is not entitled to a compensable rating for his hypertension. A review of the record reveals that there is no indication of edema due to the Veteran's diabetes. Consequently, a separate compensable rating for renal dysfunction is not warranted. As the Veteran's early nephropathy is not shown to be compensable, it is deemed part of the underlying diabetes process. 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 an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012). 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 diabetes disability level, such as restriction of diet and use of oral medications, and provides for 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 summary, the Board finds that the criteria for a higher 40 percent evaluation for diabetes mellitus with early nephropathy and hypertension have not been met. The Board notes that the Veteran has separate service connection in effect for peripheral neuropathy of both lower extremities and he has not appealed the 10 percent ratings assigned. The Board also notes that the VA examiners have specifically stated that the Veteran's sight impairment is unrelated to his diabetes. Consequently a separate compensable rating for the Veteran's eye disability is not warranted. While the Veteran is prescribed oral agents for the control of his diabetes, there is no indication of medically required regulation of activities due to his diabetes. The 20 percent rating is appropriate since the date of service connection. See Fenderson. In reaching the conclusion above 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 Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Residuals of Prostatectomy A February 2008 rating decision reduced the Veteran's 100 percent rating for residuals of prostate cancer, status post radical prostatectomy, to 20 percent, effective from May 1, 2008. The Veteran reports that he now has to urinate frequently, that he occasionally dribbles, and that he cannot enjoy sex anymore or even just the closeness and intimacy. He maintains that his 100 percent rating should not have been reduced. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e); see also 38 U.S.C.A. § 5112(b)(6). The Veteran was sent a notice letter of the proposed reduction dated in June 2007. Such communication fully detailed the proposal to reduce his disability evaluation and apprised him that he had 60 days to submit additional evidence to show that a reduction was not appropriate. Evidence was submitted and considered, and the reduction was implemented in a February 2008 rating decision, effective May 1, 2008. Given the chronology of the process described above, the Board finds that the RO complied with the due process procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. The Board must next address whether the reduction was warranted. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. See 38 C.F.R. § 3.344. That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Service connection for prostate cancer was granted and evaluated as 100 percent disabling effective June 16, 2006. The RO proposed reducing that evaluation in June 2007. The 100 percent evaluation had, therefore, been in effect for a period of less than five years, and the provisions of 38 C.F.R. § 3.344 are not applicable in this instance. An evaluation of 100 percent is provided under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system, which includes prostate cancer. The note following this Diagnostic Code indicates that, following the cessation of surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then a veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The Veteran was diagnosed as having prostate cancer in June 2006. He underwent radical prostatectomy in July 2006. Post surgical pathology demonstrated that the Veteran had adenocarcinoma of the prostate. An October 2006 private record noted that the margins were negative. Thereafter, his PSA level in March 2007 was less than 0.1 ng/ml. Subsequent VA treatment records show that the Veteran's PSA remained at below 0.1 ng/ml. The Veteran did not undergo chemotherapy and there has been no evidence of recurrence of the malignancy. Thus, the medical evidence of record clearly shows that, at the time of the reduction, the Veteran did not have any active malignancy to warrant a 100 percent disability rating for his prostate cancer. Rather, the evidence shows that the Veteran was completely asymptomatic after his radical retropubic prostatectomy with his PSA having dropped to well within normal range by March 2007. Based on this evidence, a reduction from 100 percent was warranted. Accordingly, the Board finds that the reduction of the 100 percent rating for the Veteran's prostate cancer was appropriate. The remaining question, therefore, is whether the evaluation of 20 percent for the residuals of the Veteran's prostate cancer, status post radical prostatectomy, is appropriate. The Veteran argues that it is not because it does not reflect his various symptoms, to include occasional dribbling, urinary frequency, nocturia, and erectile dysfunction. As noted above, Diagnostic Code 7528 provides that, if there has been no local reoccurrence or metastasis, then the Veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. The ratings for voiding dysfunction and renal dysfunction are found at 38 C.F.R. § 4.115a. In this case the Veteran has not alleged, and the clinical evidence has not shown, renal dysfunction due to the prostatectomy. Although the medical evidence has shown early nephropathy, such has been attributed to the Veteran's service-connected diabetes mellitus. In this case voiding dysfunction is the Veteran's predominant disability residual of his prostatectomy. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating. Where such requires the wearing of absorbent materials which must be changed two-to-four times per day, a 40 percent rating is warranted. Where such requires the wearing of absorbent materials which must be changed less than two times per day, a 20 percent rating is warranted. Urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. A daytime voiding interval between one and two hours, or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval between two and three hours, or awakening to void two times per night warrants a 10 percent rating. Obstructed voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 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 two-to-three months, warrants a 10 percent rating. A noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one-to-two times per year. An October 2006 private post surgical note indicates that the Veteran had good urinary control and he had nocturia three to four times a night. The May 2007 VA examination noted that the Veteran reported occasional dribbling, day time frequency of one to two hours, and nocturia four times a night. A June 2008 VA treatment record indicates that the Veteran had good urinary control and that he needed to urinate roughly every two hours. In a July 2009 letter to the RO regarding his contentions that he is entitled to higher ratings for his diabetes and prostate cancer disabilities, the Veteran stated that he got up four to five times a night to use the restroom. On VA genitourinary examination in August 2010 the Veteran reported erectile dysfunction and occasional urine incontinence. Daytime frequency was two to three hours, and nocturia was four times a night. The Veteran denied wearing absorbent material. When provided a VA examination for his diabetes mellitus disability in August 2010 the Veteran reported that he had urinary incontinence four times in the past year and that he had put a plastic cover on his mattress. He stated that he did not use adult diapers or pads. A November 2010 VA treatment record notes that the Veteran reported nocturia three times a night. It was also noted that the Veteran had no post void residuals. A higher rating is for assignment based on urinary frequency when there is awakening to void five or more times per night. The Board notes that ever since the assignment of a 20 percent rating for residuals of prostate cancer, the only time the Veteran indicated that he sometimes has nocturia more than four times a night was on his July 2009 letter to the RO seeking an increased rating. In that letter he indicated that he had to get up four to five times a night to go to the restroom. All of the other descriptions of the Veteran's nocturia were made to medical providers and indicate awakening four, or fewer, times a night for voiding. The Board finds that the Veteran's statements made to medical providers regarding the frequency of his nocturia are more probative than his one-time statement to the RO in seeking a higher rating. Consequently, the Board finds that the Veteran's nocturia is four or less times a night, and the Veteran is not entitled to a higher rating based on frequency of nocturia. Additionally, he has not been shown to have urinary frequency with daytime voiding interval less than one hour. Consequently he is not entitled to a higher rating based on daytime voiding. The Veteran is not entitled to a higher rating based on urinary incontinence. Although occasional dribbling, urinary incontinence, has been reported, the Veteran has denied wearing absorbent materials. He has not been shown to require the wearing of absorbent materials which must be changed two-to-four times per day. The Veteran has not claimed to have obstructive voiding and the medical records have not shown obstructive voiding, and the Veteran is thus not entitled to a higher rating based on obstructive voiding. In this case, the Veteran has not been shown to be entitled to a rating in excess of 20 percent under any applicable criteria for his residuals of prostate cancer status-post prostatectomy at any time since May 1, 2008. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). The Veteran has been in receipt of special monthly compensation (SMC) based upon the loss of use of his creative organ (i.e., for his erectile dysfunction) throughout the course of this appeal. The statute and applicable regulations do not provide for a higher rate of SMC for the loss of use of a creative organ. See 38 U.S.C.A. § 1114(k). The rates of SMC are determined by statute and are not subject to the Board's discretion. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). A higher rating on the basis of erectile dysfunction is therefore not warranted. The Board also has considered whether the Veteran's is entitled to a rating in excess of 20 percent due to extraschedular considerations. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation of 20 percent for the service-connected prostate cancer residuals is inadequate. In this case the Veteran's symptoms are the exact type contemplated in his current ratings. In that regard, a comparison between the level of severity and symptomatology of the Veteran's prostate cancer residuals with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports urinary frequency and erectile dysfunction. The current 20 percent rating under DC 7528 is specifically for urinary incontinence. As to the Veteran's erectile dysfunction, he is in receipt of special monthly compensation for loss of use of a creative organ, which is in recognition of his problems with sexual intimacy with his wife. Consequently, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In reaching the conclusion above 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 Gilbert. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus with early nephropathy and hypertension is denied. The reduction in the rating for residuals of prostate cancer, status-post prostatectomy was proper and restoration of the 100 percent rating is denied. Entitlement to a rating in excess of 20 percent for service connected residuals of prostate cancer status-post prostatectomy for the period from May 1, 2008, is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs