Citation Nr: 1333738 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-39 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for benign prostate hyperplasia (BPH) for the period prior to March 19, 2009, in excess of 20 percent from March 19, 2009, to December 29, 2010, and in excess of 40 percent from December 30, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran had verified active duty service from October 1958 to October 1966 and from September 1971 to May 1984, and retired with over 20 years of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In his October 2009 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. However, in September 2011, the Veteran withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals a brief submitted to the Board by the Veteran's representative in September 2013 but no other pertinent information not physically of record. FINDINGS OF FACT 1. Prior to March 19, 2009, the Veteran's BPH was well controlled on medication and was manifested by symptoms no worse than daytime voiding interval between two and three hours, or awakening to void two times per night. 2. From March 19, 2009, to October 13, 2009, the Veteran's BPH was manifested by symptoms no worse than daytime voiding interval between one and two hours, awakening to void three to four times per night, or requiring the wearing of absorbent materials that must be changed less than two times a day. 3. From October 14, 2009 to December 29, 2010, the Veteran's BPH was manifested by symptoms no worse than daytime voiding interval less than one hour, awakening to void five or more times per night, or requiring the wearing of absorbent materials that must be changed two to four times a day. 4. For the period beginning December 30, 2010, the Veteran's BPH has resulted in incontinence requiring the use of an appliance. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the period prior to March 19, 2009, and in excess of 20 percent from March 19, 2009, to October 14, 2009, for BPH have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.121, 4.115a, 4.115b Diagnostic Code (DC) 7527 (2013). 2. For the period from October 14, 2009, to December 29, 2010, the criteria for an initial rating of 40 percent, but no higher, for BPH have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.121, 4.115a, 4.115b, DC 7527 (2013). 3. For the period beginning December 30, 2010, the criteria for an initial rating of 60 percent, but no higher, for BPH have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.121, 4.115a, 4.115b, DC 7527 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board observes that this appeal arises from disagreement by the Veteran with the propriety of the initially assigned rating (subsequently increased by interim rating decisions) for his BPH from the original grant of service connection for such disability. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, supra, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for BPH was granted and an initial rating was assigned in the January 2009 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating for the service-connected disability at issue, no additional 38 U.S.C.A. § 5103(a) notice is required with respect to this issue because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records (STRs) as well as post-service treatment VA and private treatment records have been obtained. The Board observes that, while the Veteran submitted March 2009 and September 2009 statements from his private physician, treatment records from such physician are not of record. However, despite being requested to provide identifying information and an authorization form for any private treatment records that he wished for VA to obtain in an August 2004 letter, he did not do so. Absent a properly executed authorization form, VA is unable to obtain private treatment records. The Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran has not otherwise identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in March 2009 and December 2010 to assess the severity of his BPH. The Board finds that the VA examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history and his lay assertions and current complaints, and because they provide sufficient detail to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not alleged that his BHP has increased in severity since the December 2010 VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time not a basis for requiring of new examination). Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose with respect to the matters adjudicated in this decision. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case with respect to the claim adjudicated herein, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim adjudicated herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. 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. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. 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. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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) Fenderson v. West, 12 Vet. App. 119, 126 (1999). Based on an August 2008 advisory opinion from the Veterans Health Administration, the Board granted service connection for BPH in a January 2009 rating decision. A January 2009 rating decision effectuated this decision and assigned a noncompensable rating effective from August 10, 2004, the date of receipt of the Veteran's claim for service connection. The Veteran filed a notice of disagreement with the assignment of this rating in February 2009. Interim rating decisions increased the rating for BPH to 10 percent effective from August 10, 2004, 20 percent from March 19, 2009, and 40 percent from December 30, 2010 (the latter increases were based on findings from VA examinations conducted on those dates). As the 20 and 40 percent ratings were not assigned effective from the date of the grant of service connection, there is for consideration, as the issue is listed on the Title Page, entitlement to an initial rating in excess of 10 percent for BPH for the period from August 10, 2004, to March 18, 2009, in excess of 20 percent from March 19, 2009, to December 29, 2010, and in excess of 40 percent from December 30, 2010. AB v. Brown, 6 Vet. App. 35 (1993). The service-connected disability at issue is rated under DC 5257 (Prostate gland injuries, infections, hypertrophy, postoperative residuals). Disability under DC 5257 is rated as voiding dysfunction or urinary tract infection, whichever is the predominant disability. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Only the predominant area of dysfunction is considered for rating purposes. Id. For urine leakage, a 20 percent rating is assigned when the wearing of absorbent materials must be changed less than 2 times per day; a 40 percent rating is assigned when the wearing of absorbent materials must be changed two to four times per day; and a 60 percent rating is for assignment with 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. For urinary frequency, a 20 percent rating is assigned with daytime voiding interval between one and two hours, or; awakening to void three to four times per night; a 40 percent evaluation is assigned with daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, urinary symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year, warrants a noncompensable rating. A 10 percent rating is assigned for obstructed voiding with 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. Obstructive voiding with urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. Urinary tract infections with poor renal function are to be rated as renal dysfunction. 38 C.F.R. § 4.115a. Urinary tract infections with long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrant a 10 percent rating. Id. Recurrent symptomatic urinary infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating. Id. With the above criteria in mind, the relevant evidence will be summarized. VA treatment records beginning in 2003 noted that treatment of BPH was going well with medication, to include Minipress, Hytrin, and Flomax. In a March 2006 statement, the Veteran indicated that he did not have any current complaint as his medication had his problem under control. At an April 2007 VA examination, it was noted that the Veteran was found to have an enlarged prostate in 1993 and, since such time, it has been well controlled on Flomax and other medications. In a February 2009 statement, the Veteran stated that his prostate problem was as bad as it has always been, but it was controlled to a manageable level through the use of medication. However, he indicated that, despite the use of medication, he was still bothered with frequent urination with an attentive weak stream and sometimes incontinence. Additionally, if he goes without medication, his ordeal became very pronounced. In March 2009, the Veteran's private physician reported that the Veteran was treated for BHP due to his obstructive symptoms of difficulty urinating, difficulty emptying his bladder, hesitancy, and related low back ache. At a March 2009 VA examination, the Veteran reported symptoms of lethargy and anorexia. He voided 7 to 8 times a day, every 2 to 3 hours, and 2 times at night. He also had hesitancy and a poor stream. The examiner further indicated that the Veteran had incontinence and noted that the Veteran sometimes wore a pad and went through about 1 a day when he needs it. An August 2009 VA treatment record reflects that the Veteran was treated for increased frequency that had increased to 4 times a night. A September 2009 statement from the Veteran's private physician indicated that the Veteran had been under his care since 2000 and his treatment of the Veteran included Flomax for BPH. He indicated that the Veteran was a candidate for prostate surgery if his symptoms became intolerable and that there was a possibility that the Veteran's prostate symptoms would worsen as he got older. In an October 2009 statement, the Veteran reported that his voiding frequency increased to at least 4 to 5 times a night. Additionally, recently, whenever he was stressed, he experienced slight incontinence. Based on such symptoms, the Veteran requested a 20 percent rating or higher for his BPH. At a December 2010 VA examination, the Veteran reported that his symptoms of urinary frequency had worsened and he currently urinated 10 times a day and 4 to 5 times at night. The Veteran reported symptoms of urgency, hesitancy/difficulty starting stream, weak or intermittent stream, dribbling, straining to urinate, and urine retention. It was noted that his daytime voiding interval was 1 to 2 hours and he had nocturia 5 or more times a night. The Veteran also had renal colic 7 or more times in the past 12 months. The examiner further noted that the Veteran had urinary incontinence and, as he has Parkinson's, which made it difficult to get to the bathroom quickly, his episodes of incontinence were frequent. It was observed that he made intermittent use of an appliance to control the urinary leakage. The Veteran did not have recurrent urinary tract infections or needed catheterization, but there was a history of obstructed voiding and he required dilation once. There was no history of renal dysfunction or renal failure. Upon examination, the Veteran's prostate was generally enlarged. Regarding the period prior to March 19, 2009, the Board finds that an initial rating in excess of 10 percent is not warranted. In this regard, as summarized above, there is evidence of long-standing urinary problems that have also required an extensive course of medication so as to maintain control of such problems. However, the aforementioned evidence demonstrates that the Veteran's symptoms were well controlled on medication. In fact, in a March 2006 statement, the Veteran indicated that he did not have any current complaint as his medication had his problem under control. Moreover, there is no evidence that the Veteran's BPH was manifested by symptoms more severe than daytime voiding interval between two and three hours, or awakening to void two times per night. In this regard, while the Veteran reported in February 2009 that, despite the use of medication, he was still bothered with frequent urination with an attentive weak stream and sometimes incontinence, he did not provide the frequency with which he experienced such problems. Additionally, while his private physician reported in March 2009 that the Veteran experienced obstructive symptoms, to include difficulty urinating, difficulty emptying his bladder, and hesitancy, there is no evidence that such resulted in urinary retention requiring intermittent or continuous catheterization or marked obstructive symptomatology. In this regard, the December 2010 VA examination revealed no previous catheterizations and noted that dilation was necessary only once. Therefore, an initial rating in excess of 10 percent prior to March 19, 2009, is not warranted. Additionally, the Board finds that an initial rating in excess of 20 percent for the period from March 19, 2009, to October 13, 2009, is not warranted. In this regard, while the Veteran's BPH resulted in voiding 7 to 8 times a day, every 2 to 3 hours, and 2 times at night as noted in March 2009, and awakening 4 times a night as noted in August 2009, such did not result in more severe symptomatology of daytime voiding interval less than one hour or awakening to void five or more times a night. Moreover, while the March 2009 VA examination revealed incontinence, it was noted that such only required the use of one pad per day. Absent the need to change absorbent materials at least 2 times a day, an initial rating in excess of 20 percent based on incontinence is not warranted. However, as of October 14, 2009, the date upon which VA received the Veteran's statement that his voiding frequency increased to at least 4 to 5 times a night, the Board finds that an initial 40 percent rating is warranted. Additionally, at such time, he reported slight incontinence; however, there is no evidence that such required the use of an appliance or the wearing of absorbent material that must be changed more than 4 times per day. As such, an initial rating in excess of 40 percent is not warranted. With respect to the period beginning December 30, 2010, given the fact that the VA examination on that date demonstrated that the Veteran's incontinence requires the use of an appliance, and that the criteria set forth above provide for a 60 percent rating for such voiding dysfunction, the Board finds that the criteria for a 60 percent rating for BPH are met effective from December 30, 2010. This is the highest assignable rating for BPH on the basis of voiding dysfunction under 4.115a, and the only basis for assigning a 60 percent rating for BPH under the Ratings Schedule is for disability manifested as voiding dysfunction. Additionally, for the entire appeal period, the Board finds that the Veteran's BPH has not resulted in renal dysfunction or urinary tract infections. The Board emphasizes that in making the above determinations, staged ratings for the Veteran's disabilities beyond those already assigned or granted herein are not warranted; in short, it was not until October 14, 2009, statement that the Veteran reported the need to urinate at least 4 to 5 times a night, and not until the December 30, 2010, VA examination that there was evidence demonstrating that the Veteran used an appliance for incontinence so as to warrant a 60 percent rating were met. See Fenderson, Hart, supra. In this regard, while incontinence was shown at the March 2009VA examination and noted by the Veteran in his October 2009 statement, it was not indicated on the reports from this examination that he used an appliance for such symptoms or required changing materials more than once a day. Instead, these reports reflected that the Veteran was wearing a pad for such symptoms, usually using about one a day. In making its determinations, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected BPH and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board has also contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected BPH with the established criteria found in the rating schedule. The Board finds that the disability at issue is fully addressed by the rating criteria under which the disability is rated. In this regard, the specific diagnostic criteria adequately address the whole of the Veteran's symptoms referable to his service-connected BPH. There are no additional symptoms of the service-connected disability at issue. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disability addressed above. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, at the March 2009 VA examination, it was noted that his BPH resulted in no problems, with the exception of frequent urination, on his usual occupation. Additionally, at the December 2010 VA examination, it was noted that the Veteran had retired due to eligibility by age or duration of employment. There is otherwise no evidence or allegation that the Veteran is unemployable due to his service-connected BPH. Therefore, the issue of entitlement to a TDIU is not raised in the instant appeal and further consideration of such is not necessary. In sum, while entitlement to a 40 percent rating as of October 14, 2009, and a 60 percent rating as of December 30, 2010, is warranted, the preponderance of the evidence is against an initial rating in excess of 10 percent for the period prior to March 19, 2009, in excess of 20 percent from March 19, 2009, to October 13, 2009, in excess of 40 percent from October 14, 2009, to December 29, 2010, and in excess of 60 percent from December 30, 2010. Therefore, the benefit of the doubt doctrine is not applicable and entitlement to higher initial ratings must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra. ORDER An initial rating in excess of 10 percent for the period prior to March 19, 2009, and in excess of 20 percent from March 19, 2009, to October 13, 2009, for BPH is denied. For the period from October 14, 2009, to December 29, 2010, an initial rating of 40 percent, but no higher, for BPH is granted, subject to regulations governing the payment of monetary awards. For the period beginning December 30, 2010, an initial rating of 60 percent, but no higher, for BPH is granted, subject to regulations governing the payment of monetary awards. ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs