Citation Nr: 1614113 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 11-05 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating for urinary tract infection (UTI) prior to March 9, 2015. 2. Entitlement to an initial rating greater than 20 percent for UTI since to March 9, 2015. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Air Force from September 1993 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic Virtual VA and Veterans Benefit Management System (VBMS) claims files. All records are now in these electronic systems. The Veteran testified at a December 2015 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS file. FINDINGS OF FACT 1. Prior to March 9, 2015, the Veteran's UTI required long-term drug therapy and intermittent intensive management. 2. From March 9, 2015, the Veteran's UTI has been manifested by daytime voiding intervals between one and two hours, and awakening to void no more three to four, or four to five times at night; it has not required catheterization, drainage or frequent hospitalization, or the wearing of absorbent materials. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, prior to March 9, 2015, his UTI has met the criteria for a 10 percent evaluation, but no higher. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7517 (2015). 2. For the period from March 9, 2015, the Veteran's UTI has not met the criteria for an evaluation greater than 20 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7517. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Because service connection, initial ratings, and effective dates have been assigned, the notice requirements of the VCAA, 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to this claim would serve no useful purpose. During the Veteran's December 2015 Board hearing, the undersigned Veterans Law Judge explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regards to the claim. Because of this, the Veteran and his representative were provided the opportunity to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103. Further, the Veteran has not contended the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed prejudicial error. There is no indication the Veteran was otherwise denied due process during his Board hearing. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for the issues addressed are in order. Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing the appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The Veteran's UTIs have been rated by analogy under Diagnostic Code 7599-7517 as an injury of the bladder. See 38 C.F.R. §§ 4.20, 4.115b. Injuries of the bladder are rated as voiding dysfunction. Voiding dysfunctions are rated by particular conditions such as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4115a. In this case, the RO rated the Veteran's symptoms under the criteria for urinary frequency. Under urinary frequency, a 10 percent rating requires a daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating requires a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating requires a daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. The Board has also considered rating the Veteran's symptoms under the criteria for obstructed voiding and urinary tract infections. Under obstructed voiding, a 10 percent rating requires 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 150cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec.); (3) recurrent urinary tract infections secondary to obstruction; and (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating requires urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. Under urinary tract infections, a 10 percent rating requires long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating requires recurrent symptomatic infection requiring drainage/ frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Urine leakage requires wearing of absorbent materials that must be changed less than twice a day for a 20 percent evaluation; wearing of absorbent materials that must be changed 2 to 4 times a day for a 40 percent evaluation; and use of an appliance or wearing absorbent materials that must be changed more than 4 times a day for a 60 percent evaluation. Analysis Compensable Rating Prior to March 9, 2015 The Veteran seeks entitlement to an initial compensable rating for UTI prior to March 9, 2015. During an April 2009 VA examination, the examiner reviewed the claims file, examined the Veteran, and diagnosed him with recurring UTI. The examiner also diagnosed him with hematuria, but noted that he had never been diagnosed with "stone." Medical records reflected that the Veteran had ten UTI episodes in the past two years that were treated with antibiotics. Other than hematuria, the Veteran displayed no urinary symptoms such as urgency; hesitancy/difficulty starting stream; weak or intermittent stream; dysuria; dribbling; straining to urinate; urine retention; or urethral discharge. The Veteran had no urinary leakage, and no history of obstructed voiding; urinary tract stones; renal dysfunction or failure; or acute nephritis. The examiner noted no drainage or intensive management had been required in the past 12 months. There was no indication of the use of absorbent materials. Prior to March 4, 2010, the record also reflects private treatment for UTIs. April and May 2006 private treatment records reflect that the Veteran had urine cultures that manifested no bacterial growth, chlamydia, or gonococcus. An April CT scan of the abdomen found no renal stone, hydronephrosis, or renal mass, and a scan of the pelvis was normal. A May 2006 cystoscopy found bilateral lobes that were moderately obstructive, but found no bladder tumors, lesions, or stones. At that time, the Veteran was diagnosed with incomplete bladder emptying. Further, VA treatment records during the relevant time period reflect treatment for pain during urination. See, e.g., December 2006 VA Treatment Records. The Veteran had chronic bacterial prostatitis that improved after a long treatment of antibiotics. See October 2008 VA Treatment Records. During a VA examination on March 4, 2010, the examiner noted that the Veteran manifested daytime voiding intervals between one and two hours, and voiding once per night. The Veteran also manifested hesitancy/ difficulty starting stream and weak or intermittent stream. The Veteran did not manifest urgency; dysuria; dribbling; straining to urinate; hematuria; urine retention; urethral discharge; or renal colic. There was no urinary leakage. While the examiner noted the history of recurrent UTI, the Veteran had no hospitalizations or drainage required for UTI in the past year. The Veteran did have one to three months of UTI treatment in the past year, but it did not require intensive management. The Veteran also had a history of urinary tract stones, but had no obstructed voiding, no history of acute nephritis, and no history of hydronephrosis. The examiner found no pathological findings associated with UTI or kidney stones. The examiner also noted that the Veteran had primary bladder neck obstruction that predisposed him to UTI. October 2010 VA treatment records reflect that the Veteran had painful urination and two UTIs in the previous two months. April 2011 VA treatment records indicate that, while his UTI had resolved, he voided 4 or 5 times per night. July 2011 VA treatment records reflect that his worsening nighttime voiding resolved with a change in medication, and he did not currently have UTI. A March 2014 CT scan showed no significant abnormalities in the abdomen or pelvis. Finally, at the December 2015 hearing, the Veteran testified that his symptoms began to get worse in May 2007, and he reported painful urination with a burning sensation. The Veteran is competent to report these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Reviewing the evidence for this time period, the Board finds that the Veteran's symptoms more nearly approximate the criteria for a 10 percent rating under the criteria for urinary tract infections for the period prior to March 9, 2015. 38 C.F.R. § 4.115a. The 2009 VA examiner noted that the Veteran had ten UTIs in the past two years. He also had chronic bacterial prostatitis that required a long period of treatment with antibiotics, and he testified that his symptoms began to worsen in May 2007. Resolving reasonable doubt in the Veteran's favor, the Board finds that this evidence is analogous to long term drug therapy requiring intermittent intensive management, and a 10 percent disability rating under the evaluation criteria for UTIs is warranted. In the absence, however, of evidence of recurrent symptomatic infection requiring drainage, hospitalization, or continuous intensive management, a 30 percent rating cannot be assigned under this provision. Moreover, the Board has also considered the Veteran's symptoms prior to March 9, 2015, under the criteria for urinary frequency, obstructed voiding, and urinary leakage to determine if a higher rating could be assigned. However, at no time during the relevant time period is there evidence of daytime voiding intervals between one and two hours, or awakening to void three to four times per night; urinary retention requiring intermittent or continuous catheterization, or the required wearing of absorbent materials. 38 C.F.R. § 4.115a. While an April 2011 VA treatment records reflect that the Veteran reported nocturia, voiding 4 or 5 times per night; a July 2011 note reports that the nocturia resolved shortly after his last visit when he discontinued using a prescribed steroid, and at the July 2011 visit he denied dysuria, hematuria, urgency, frequency or nocturia and his UTIs had decreased infrequency. Accordingly, a disability rating higher than 10 percent cannot be assigned under any of these other provisions for the time period in question. Rating greater than 20 percent for the period beginning on March 9, 2015 The Veteran seeks entitlement to an initial rating of more than 20 percent for a urinary condition beginning on March 9, 2015. During a VA examination on March 9, 2015, the examiner reviewed the claims file, examined the Veteran, and noted diagnoses of UTI, nephrolithiasis, and primary bladder neck obstruction. The examiner determined that the Veteran had a voiding dysfunction that caused daytime voiding at intervals between one and two hours, and nighttime voiding between three to four times. The voiding dysfunction also caused a markedly slow, weak, and decreased force of stream; and caused recurrent UTI secondary to an obstruction. The Veteran's recurrent infections required intermittent intensive management with oral antibiotics. August 2015 VA treatment records reflect that the Veteran sought treatment for urinary difficulty that included burning and odor, but he denied urinary urgency, pain, or change in color. At his December 16, 2015 hearing, the Veteran testified that he continues to experience burning sensations and sharp pains, and testified that he wakes up four or five times per night to void. He is competent to report his observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the evidence for this time period, the Board finds that the Veteran's UTI more nearly approximates the criteria for a 20 percent evaluation. While he reported voiding 4 to 5 times at night at his hearing, to warrant a 40 percent evaluation for urinary frequency, his UTI would have to cause daytime voiding at intervals between one and two hours, or nighttime voiding of five times or more. 38 C.F.R. § 4.115a. There is no indication that his frequency meets these criteria. Moreover, a rating greater than 20 percent from March 9, 2015, is not warranted as there is no evidence of the necessity of wearing absorbent materials, recurrent symptomatic infection requiring drainage/frequent hospitalization and/or continuous intensive management, or urinary retention requiring catheterization. 38 C.F.R. § 4.115a. Accordingly, the Board finds that since March 9, 2015, the Veteran's symptoms more nearly approximate the criteria for a 20 percent rating under urinary frequency. ORDER Prior to March 9, 2015, an initial disability rating of 10 percent for UTI is granted subject to the laws and regulations governing the award of monetary benefits. From March 9, 2015, entitlement to an initial evaluation greater than 20 percent for UTI is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs