Citation Nr: 1334313 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-12 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for the residuals of prostate cancer. 2. Entitlement to an initial compensable rating for erectile dysfunction. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from August 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. A review of the Virtual VA paperless claims processing system revealed no records which are pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's predominant symptom of the residuals of prostate cancer is urinary frequency; he reports that he needs to urinate every 2-3 hours during the day and 3 times at night. 2. The Veteran does not have a deformity of the penis with loss of erectile power. CONCLUSIONS OF LAW 1. A disability rating greater than 20 percent for the residuals of prostate cancer is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527 (2012). 2. The criteria for a compensable rating for service-connected erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115b, Diagnostic Code 7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). With regard to the Veteran's claims for initial increased evaluations for his residuals of prostate cancer and erectile dysfunction, this appeal arises from disagreement with initial evaluations following the grants of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. For these reasons, VA has satisfied its duty to notify. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and a report of a VA compensation examination in April 2011. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claim Although the Veteran contends that his residuals of prostate cancer and erectile dysfunction are more severe than reflected by his current disability ratings, the preponderance of the evidence is against the claims and the appeal will be denied. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. The Veteran is appealing initial evaluations following an initial award of service connection. As such, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Residuals of Prostate Cancer Pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7527, the residuals of prostate cancer are to be rated as voiding dysfunction or a urinary tract infection, whichever is predominant. The Veteran does not assert a problem with a urinary tract infection; rather he asserts he needs to urinate frequently. Under 38 C.F.R. § 4.115a, adjudicators are instructed to rate voiding dysfunction based upon either urine leakage, frequency, or obstructed voiding. For urine leakage, the minimum 20 percent rating requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent evaluation contemplates requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. The maximum 60 percent rating contemplates requiring the wearing of an appliance or absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. The criteria regarding urinary frequency provide that a 10 percent rating is warranted for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding intervals between one and two hours, or awakening to void three to four times per night. The maximum rating based on urinary frequency is 40 percent, which is assigned for daytime voiding intervals less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. A 10 percent rating is warranted for obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: (1) post void residuals greater than 150cc; (2) uroflowmetry showing markedly diminished peak flow rate (less than 10cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted where there is urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. The Veteran was afforded a VA examination in April 2011. The examiner found the Veteran does not have obstructed voiding or require the use of absorbent materials, and his predominant symptom is urinary frequency. The Veteran reported urinating "every 2-3 hours during the day" and "3x at night." Under the above criteria, his reports are more nearly analogous to the criteria for the currently-assigned 20 percent disability rating. The maximum rating based on urinary frequency is 40 percent, which is assigned for daytime voiding intervals less than one hour or awakening to void five or more times per night, is not present here. In sum, the preponderance of the evidence is against the award of a disability rating greater than 20 percent for this disability. Erectile Dysfunction The Veteran is seeking a compensable disability rating for his service-connected erectile dysfunction, which is currently evaluated as noncompensably disabling under Code 7522. He contends that his erectile dysfunction and the resulting sexual difficulties warrant a compensable rating. The preponderance of the evidence is against the claim, and the appeal will be denied. There is no diagnostic code which deals with erectile dysfunction exclusively. Diagnostic Code 7522 is the most appropriate primarily because it is the only diagnostic code which includes loss of erectile power among its criteria. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate. Diagnostic Code 7522 provides a 20 percent rating for deformity of the penis with loss of erectile power. No other disability rating is provided by this diagnostic code. See 38 C.F.R. § 4.115b, Code 7522. Where the Rating Schedule does not provide a zero percent rating, a zero percent rating shall be assigned if the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31 (2012). In August 2011, the Veteran expressed concern about not being compensated for his erectile dysfunction; however, the June 2011 rating decision on appeal that denied a compensable rating for erectile dysfunction also granted entitlement to special monthly compensation (SMC) based on loss of use of a creative organ under 38 U.S.C. § 1114(k) (West 2002). Indeed, while the disability was not given a compensable rating, compensation was awarded on the basis of SMC. To obtain a compensable rating under Diagnostic Code 7522, deformity of the penis with loss of erectile power must be demonstrated. At a VA examination in April 2011, the Veteran was diagnosed with erectile dysfunction. The examiner noted he was unable to achieve an erection sufficient for penetration and ejaculation without medication, but was able to do so with medication. Indeed, he has been prescribed medication for this disorder since his prostate cancer surgery. See, e.g., November 2010 VA treatment record. The Veteran's inability to achieve penetration or ejaculation is considered in the context of loss of erectile power, but it is not sufficient on its own to warrant a higher rating. In addition to loss of erectile power, the rating criteria also require deformity of the penis to warrant a compensable evaluation. No evidence of penis deformity is in the record. Accordingly, the criteria for a compensable evaluation for erectile dysfunction have not been met. As the preponderance of the evidence is against the increased rating claim denied above, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular The Veteran has not raised, and the evidence does not suggest that referral for extra-schedular evaluations are warranted. The Veteran's symptoms are addressed by the rating criteria discussed above, and such a referral is appropriate where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describes the severity and symptomatology of the Veteran's service-connected disabilities. The Veteran has also alleged that his disability compensation rate is not sufficient, given his demonstrated combat service. There is no question that the Veteran provided valuable service to the nation during the Vietnam War. However, the compensation rates are established by law through the Congress and VA has no authority to grant additional benefits on a schedular basis because of equitable reasons. It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. ORDER An initial disability evaluation greater than 20 percent for the residuals of prostate cancer is denied. An initial compensable evaluation for an erectile dysfunction is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs