Citation Nr: 1615521 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 14-19 632 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for a duodenal ulcer (ulcer). 2. Entitlement to service connection for an ulcer, to include as secondary to service-connected hernia conditions. 3. Entitlement to restoration of a 100 percent rating effective November 30, 2010, for service-connected residuals of prostate cancer, in remission after radiation therapy, to include urinary frequency and urinary incontinence. 4. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer, in remission after radiation therapy, to include urinary frequency and urinary incontinence from November 30, 2010. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 29, 2011. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney ATTORNEY FOR THE BOARD Marcella Coyne, Associate Counsel INTRODUCTION The Veteran completed active service from September 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision reducing the Veteran's 100 percent rating for prostate cancer to 20 percent post radiation treatment, and a November 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying a reopened claim for service connection for an ulcer. In response to a request in the Veteran's March 2010 Notice of Disagreement (NOD) with the November 2009 rating decision, the Veteran's ulcer claim was re-characterized as service connection for an ulcer secondary to hernia surgery, and was denied on that basis in an August 2011 decision. The Board has considered documentation included in the Virtual VA system and the Veterans Benefits Management System (VBMS) in reaching the determination below. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. As will be discussed below, the Board finds that the September 2010 rating reduction was proper. However, although generally the propriety of a rating reduction is a separate issue from a claim for an increased evaluation, where the RO processes the appeal of a reduction as if it were an increased rating claim, the Board waives any jurisdictional or procedural barriers to consideration of that claim. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case."); see also Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). Here, the RO processed the appeal of the September 2010 reduction as both a challenge of the reduction and an increased rating claim. The February 2014 Statement of the Case (SOC) not only reduced the Veteran's rating from 100 percent to 20 percent, it explained why the Veteran was not entitled to a higher rating of 30 or 40 percent. Accordingly, because the RO treated the Veteran's claim as challenging both the reduction of his rating and the assignment of the current 20 percent rating, the RO has led the Veteran to believe that both of those issues are on appeal, and has therefore taken jurisdiction over the issue of increased rating for the Veteran's prostate cancer residuals in addition to the rating reduction. See Percy, 23 Vet. App. 37, 46. Finally, although the Agency of Original Jurisdiction (AOJ) did not certify the issue of TDIU as part of this appeal and the Veteran was later awarded TDIU effective August 29, 2011, the Veteran has asserted that he was forced to retire early on account of his prostate cancer. Therefore, the Board has jurisdiction to consider the issue of entitlement to a TDIU prior to August 29, 2011 based on all of his service-connected disabilities as part of his claim for an increased rating for prostate cancer residuals. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issues of service connection for an ulcer, to include as secondary to service-connected hernia conditions, and TDIU are addressed in the REMAND portion of the decision below and are hereby REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for an ulcer was most recently denied in an unappealed October 2006 rating decision. 2. Evidence presented since the October 2006 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim for service connection for an ulcer. 3. The reduction of the disability rating of 100 percent for prostate cancer to 20 percent for prostate cancer residuals, effective November 2010, was proper and consistent with applicable law and regulations. 4. The Veteran's prostate cancer residuals, namely, urinary frequency, the use and changing of absorbent materials, and "nocturnia," do not manifest themselves as daytime voiding less than one hour or awaking to void five or more times a night, or the wearing and changing of absorbent materials which must be changed two to four times a day. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied service connection for an ulcer is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 3.156, 20.200, 20.302, 20.1103 (2015) (emphasis added). 2. Evidence received since the October 2006 rating decision is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 3.156, 20.200, 20.302, 20.1103 (2015). 3. The reduction of the 100 percent rating for the service-connected prostate cancer in September 2010 was proper, and the requirements for restoration have not been met. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, 4.115(a) including Diagnostic Code 7528 (2015). 4. The criteria for a rating in excess of 20 percent for prostate cancer residuals have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-14, 4.115(a), Diagnostic Code 7528 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice Requirements for Rating Reduction Decisions The duties to notify and assist do not apply where the issue is a reduction in rating. The Veterans Claims Assistance Act of 2000 (VCAA) duties are only triggered by the receipt of a new application or claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b), (c). In the case of a reduction, there has been no application or claim, so the VCAA is inapplicable. Accordingly, the Veteran's former attorney's contentions on his VA Form 9 alleging violations of the duty to assist are groundless. However, there are specific notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the Veteran in a reduction case are set forth under 38 C.F.R. § 3.105(e), and must be followed by VA before issuing a final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). 38 C.F.R. § 3.105(e) requires: (1) that the Veteran be sent a proposed rating decision setting forth all material facts and reasons for the rating reduction; and (2) that the Veteran be given 60 days to present additional evidence demonstrating that the rating should be continued at its present level. These specific notice requirements take precedence over the more general notice requirements found in the VCAA. See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one ...."); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-77 (2005). Here, an April 2010 due process letter and enclosed proposed rating decision informed the Veteran of the proposed rating reduction, and provided the Veteran 60 days within which to submit new evidence. The Veteran responded to the due process letter in May 2010 within the 60 day period and attached medical records he wished the RO to consider before reducing the rating for his prostate cancer residuals. While the RO did not consider the Veteran's May 2010 response in the September 2010 rating decision it did consider and address it in the February 2014 Statement of the Case (SOC). Therefore, the RO adhered to all required procedural safeguards afforded to the Veteran. As noted above, because the RO processed the Veteran's appeal of the reduction of his disability rating for his prostate cancer residuals as an increased rating claim, the Board has assumed jurisdiction over that issue and will address the RO's duty to notify and assist the Veteran in adjudication of that claim in the section below. II. Duty to Notify and Assist A. Petition to Reopen Previously Denied Ulcer Claim Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of reopening his claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is unnecessary. B. Increased Rating Claim for Prostate Cancer Residuals With regard to the Veteran's increased rating claim for prostate cancer residuals, VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). For increased ratings claims, the VCAA requires generic notice: of the type of evidence needed to substantiate the claim, here, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Veteran received no such letter. However, the April 2014 SOC included the provisions of 38 C.F.R. §§4.1 and 4.7. Additionally, it provided the Veteran with the specific rating criteria applicable to prostate cancer residuals and explained why a rating higher than 20 percent was not warranted. Likewise the September 2010 rating decision also provided the Veteran with the specific rating criteria applicable to prostate cancer residuals and explained why a rating higher than 20 percent was not warranted. Moreover in his September 2010 Notice of Disagreement (NOD), the Veteran made reference to recent medical evidence demonstrating that he continued to have prostate cancer residuals, as well as medical evidence he had previously submitted. Where the evidence demonstrates the Veteran had actual knowledge of the elements of his claim, failure to receive a VCAA notice letter is not prejudicial. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was twice provided with notice of the evidence required to adjudicate a claim for increased rating as well as how disability ratings and effective dates are assigned, his claim was subsequently readjudicated, and the Veteran did submit additional medical evidence in support of his claim. As such, the RO's failure to issue a VCAA notice letter was not prejudicial in this case. According to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must assist the Veteran by providing a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Barr v. Nicholson, 21 Vet App. 303, 311 (2007). A medical examination is "fully informed" when the examiner has sufficient facts upon which to base an opinion relevant to the issue at hand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Here, the Veteran was provided with two VA examinations: one in June 2013 in connection with a separate TDIU claim that has not been before the Board, and one in December 2009. Both examinations were adequate because they were based on an in-person examination of the Veteran, involved a thorough review of the claims file, and included a detailed medical history, and where appropriate, objective observations of the Veteran's condition. As such, the RO met VA's duty to assist with regard to this claim. Further, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009) (reversing past case law that imposed a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is prejudicial normally falls upon appellant). Finally, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. III. General Evidentiary Principles Although the Board is required to state the reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). As such, the analysis herein focuses on the most salient evidence and explains why this evidence either is or is not probative. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Accordingly, 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). The evaluation of evidence generally involves a three-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 (2013). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. With the exception of rating reduction decisions, it is the Veteran's "general evidentiary burden" to establish the elements of his claim. However, benefits can only be denied where the Board finds that the preponderance of the evidence weighs against the Veteran's claim. See id. Additionally, when the positive evidence supporting a claim of benefits and the negative evidence indicating a denial of benefits is relatively equal, the Veteran is entitled to the benefit of the doubt and the claim should be granted. See 38 U.S.C.A. §5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Fagan. Shinseki, 573 F.3d 1282, 1287 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Below, Part IV will discuss whether the Veteran has presented new and material evidence sufficient to reopen his service-connection claim for his ulcer. Part V will discuss whether it was appropriate for the RO to reduce the Veteran's rating for prostate cancer residuals. Finally, Part VI will discuss whether the Veteran is entitled to a rating in excess of 20 percent for his prostate cancer residuals. IV. New and Material Evidence for Ulcer Claim In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Service connection for stomach trouble was initially denied by the RO in an unappealed February 1972 rating decision. At the time, the RO acknowledged a post-service diagnosis of duodenal ulcer which it found unrelated to service. Subsequently, the Veteran attempted to reopen his claim, and in an April 1998 rating decision the RO found that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for stomach trouble. That decision was appealed to the Board which denied the Veteran's claim in an October 2001 rating decision. The Veteran again attempted to reopen his claim, and in an October 2006 rating decision, the RO confirmed the previous denial of service connection for a duodenal ulcer. The Veteran initiated, but did not perfect an appeal of this decision. Thus, this is the last prior final decision on this matter. This appeal stems from the Veteran's most recent request to reopen his claim. The Board will first address medical evidence submitted by the Veteran in support of his claim. Here, the Veteran submitted several private medical records in support of his claim to reopen based on new and material evidence. These records include: (1) 1980s medical records from Dr. C.W.; (2) 1998 and 2000 medical records from Dr. L.S.; and (3) 2010 medical records from Dr. J.P. A review of the record reflects that medical records from Dr. C.W. and Dr. L.S. are duplicates of records previously submitted by the Veteran in support of a prior petition to reopen his ulcer claim based on new and material evidence. In an October 2001 decision the Board found that these records were new but not material. The Veteran did not appeal this decision, and it became final. The Board does not consider this evidence new and material evidence sufficient to reopen the Veteran's claim. However, the 2010 medical records from Dr. L. P. are new records that were not previously submitted and for which there has been no prior adjudication as to their sufficiency to reopen the Veteran's ulcer claim based on new and material evidence. The records from Dr. L. P. therefore constitute new evidence because they have never previously been submitted to agency decisionmakers. The Board notes that these records detail a colonoscopy procedure that revealed adhesions, hemorrhoids, and rectal polyps in the Veteran's colon. The procedure resulted in the removal of a rectal polyp. Given the foregoing content of the 2010 medical records from Dr. L. P., these records do not constitute material evidence because they do not mention the Veteran's ulcer or hernia surgery either directly or indirectly, and therefore fail to raise a reasonable possibility of substantiating the claim even with the assistance of a VA medical examination. Accordingly, this evidence submitted in support of the Veteran's petition to reopen his service-connection claim for his ulcer does not constitute new and material evidence. However, the Veteran submitted a lay statement in his May 2010 NOD to the November 2009 rating decision stating that his ulcer was secondary to scar tissue from his hernia surgery, the residuals of which he has established service connection, and has been characterized by VA as "left inguinal herniorrhaphy" and "right inguinal herniorrhaphy." Subsequent to the March 2010 NOD, VA furnished the Veteran an examination in May 2011 related to his ulcer claim as well as a separate claim for increased rating for his left inguinal herniorrhaphy and right inguinal herniorrhaphy. This lay statement and the May 2011 VA examination together constitute new and material evidence sufficient to reopen the Veteran's previously denied ulcer claim because they have never been previously submitted to agency decisionmakers and because they relate to a possible medical nexus, one of the required elements of service connection. Accordingly, the claim is reopened. However, because the Board finds that the Veteran's underlying service connection claim requires further development by the AOJ, the Veteran's ulcer claim will remanded and will not be adjudicated on the merits at this time. VI. Rating Reductions for Prostate Cancer In general, the standard to be applied to a rating reduction decision depends on how long the rating has been in effect. When a rating has continued at the same rating level for five years or more, the underlying VA examination supporting a reduction must be at least as complete as the VA examination that formed the basis for the original rating, and a finding that the condition at issue not be likely to return to its previous level must be made. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be made if VA determines that evidence before it indicates that it is reasonably certain that the improvement of the underlying injury or condition will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, if a rating level has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable. § 3.344(c). In such cases, if reexamination of the Veteran discloses improvement, a reduced rating is appropriate. See id. Moreover, the burden of proof is on VA to justify a reduction in rating. See Brown v. Brown, 5 Vet. App. 413 (1993). When reviewing a rating reduction for adequacy the Board must inquire "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Additionally, ordinarily, where, as here, a total rating has been reduced, reexamination must demonstrate material improvement. 38 C.F.R. § 3.343(a) (emphasis added). Such demonstrated material improvement must be evaluated in conjunction with all the facts of record. Id. Particular consideration must be given to whether the Veteran has actually attained improvement of his condition under the ordinary conditions of life and work. See id. However, in this case, under the Diagnostic Code 7528, the 100 percent rating initially awarded was not designed or intended to be a permanent reflection of the Veteran's disability picture. Here, the initial 100 percent rating for the Veteran's prostate cancer was assigned effective December 2008 without VA examination on the basis of herbicide presumption due to the Veteran having served in the Republic of Vietnam from September 1967 to June 1968, along with October 2008 private treatment records diagnosing the Veteran with prostate cancer by biopsy. The RO assigned the Veteran a rating under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. Private medical records from Dr. G. indicated that the Veteran had undergone radiation treatment from January 2009 to March 2009. In a September 2010 rating decision the RO effectuated a proposed rating reduction from 100 percent to 20 percent effective November 30, 2010, the last day following 60 days notice (of proposed reduction). Diagnostic Code 7528 affords a single temporary 100 percent evaluation and contains no listed symptoms or conditions for that rating, and no lower percent evaluations that can be assigned. 38 C.F.R. § 4.115(b). It is awarded only if a condition is in active malignancy while a Veteran is undergoing therapeutic treatment. See id. Diagnostic Code 7528. This is demonstrated by the only Note to Diagnostic Code 7528 which states: "following the cessation of surgical, X- ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue, with a mandatory VA examination at the expiration of six months." Id. Any change in evaluation based upon that or any subsequent examination are be subject to the provisions of 38 C.F.R. § 3.105(e). Id. Moreover, if, upon examination, there has been no local reoccurrence or metastasis, the disability is to be rated on "residuals such as voiding dysfunction or renal dysfunction, whichever is predominant." Id. As such, given that the Veteran's 100 percent rating for prostate cancer is temporary by definition, no finding of material improvement under the ordinary conditions or life and work is required. Here, two VA examinations were conducted: one in December 2009, and another in June 2013 in connection with a separate TDIU claim. Both examinations revealed the Veteran's prostate cancer to be in remission, with no local reoccurrence or metastasis. Likewise, a review of the Veteran's Biloxi, Mississippi and Mobile, Alabama VA Medical Centers (VAMCs) treatment records and private treatment records reveals that the Veteran's prostate cancer is in remission with no local reoccurrence or metastasis. Accordingly, the RO's rating reduction in this case was proper. VI. Increased Rating for Prostate Cancer Residuals Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Furthermore, when it is not possible to separate the effects of the service-connected disability from a non-service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Additionally, the Board has a duty to consider all claims reasonably raised by the record and to assign the diagnostic code most favorable to the Veteran, and therefore must consider all relevant diagnostic codes, not just the diagnostic code currently assigned to the Veteran. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); Fanning v. Brown, 4 Vet. App. 225, 228 (1993). Addressing the Veteran's claim, Part A below, discusses the criteria of various ratings for prostate cancer residuals and applies them to this Veteran's prostate cancer residuals, while Part B discusses the applicability of extraschedular considerations. A. Prostate Cancer Residuals As explained above in Part V, Diagnostic Code 7528 does not require any associated symptoms or conditions, it simply requires a diagnosis of malignant neoplasms of the genitourinary system, and assigns a temporary 100 percent rating for Veterans undergoing therapeutic treatment. 38 C.F.R. § 4.115(b). Any dysfunction remaining after cessation of treatment is to be rated on the basis of voiding dysfunction or renal dysfunction, whichever residual is predominant. See id. The Veteran is currently assigned a 20 percent rating for voiding dysfunction resulting from prostate cancer residuals. 38 C.F.R. § 4.115(a) covers all dysfunctions of the genitourinary system, whether renal or voiding. Renal pertains to kidney dysfunction, while voiding pertains to other urinary dysfunction. When rating voiding dysfunction, a rating level is selected on the basis of urine leakage, urinary frequency, or obstructed voiding, whichever category is most applicable to the Veteran's symptoms. See id. For urine leakage the lowest rating of 20 percent is assigned if the Veteran's condition requires the wearing of absorbent materials that must be changed less than two times a day. Id. A higher rating of 40 percent is appropriate if absorbent materials must be changed two to four times a day. Id. Finally, the highest rating of 60 percent is appropriate if the use of an appliance is required or absorbent materials must be changed more than four times a day. Id. For urinary frequency, the lowest rating of 10 percent is required if there is daytime voiding every two to three hours, or nocturnia two times per night. Id. A higher rating of 20 percent is appropriate if there is daytime voiding every one to two hours, or nocturnia three to four times a night. Id. Finally, the highest rating of 40 percent is appropriate if there is daytime voiding less than every hour or nocturnia five or more times a night. Id. Finally, for obstructed voiding, a noncompensable rating is assigned if there are obstructive symptoms with or without stricture disease requiring dilation one to two times per year. Id. A higher 10 percent rating is appropriate if the Veteran presents with marked obstructive symptoms such as hesitancy, weak stream, or decreased force of stream with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) "uroflowmetry," defined as markedly diminished peak flow rate (less than 10cc/sec.); (3) recurrent urinary tract infections secondary to obstruction; and (4) stricture disease requiring periodic dilatation every two to three months. Id. The December 2009 examination revealed the following: (1) that the Veteran had completed 42 radiation treatments and that his oncologist was pleased with his response to those treatments, scheduling the Veteran for six month follow-up appointments; (2) that the Veteran denied incontinence; (3) that the Veteran experienced urinary frequency every 90 minutes; (4) that the Veteran experienced nocturnia two or three times a night;(5) that the Veteran reported preexisting erectile dysfunction (ED) that had worsened after radiation treatment but could have sex with medication, had risk factors for ED, including alcohol abuse, age, and tobacco use, had been diagnosed with ED in 2007, prior to the onset of prostate cancer, and that the examiner opined this "partial" ED was consistent with aging and not caused by or related to the Veteran's prostate cancer condition; (6) that an examination of the Veteran's prostate revealed a sphincter with good tone, and no evidence of soiling, fissures or hemorrhoids, as well as a firm, round slightly enlarged prostate; and (7) no external genitalia abnormalities, penile deformity or testicular atrophy; and normal testosterone levels. That the veteran experienced urinary frequency is confirmed by the October 2009 and April-May 2010 private treatment records from Dr. B. sent by the Veteran in response to the due process letter alerting him of the proposed rating reduction. These records indicate that the Veteran experienced "some urinary frequency, intermittency, hesitancy, [and] weak stream." These records do not further detail the Veteran's urinary frequency, and provide no comment on incontinence or nocturnia. However, March 2009 records from Dr. G. indicate nocturnia and hesitancy, at one point indicating nocturnia two times per night. However, 2010 Biloxi and Mobile, Alabama VAMC treatment records as well as lay statements submitted by the Veteran and his daughters indicate that the Veteran wears absorbent materials, but do not elaborate as to how often those need to be changed a day. Specifically, March 2014 lay statements by the Veteran's daughters state that their father's inability to control his waste is a constant issue as an "accident" can happen anytime. Moreover, 2013 Social Security Administration records indicate that while the Veteran goes to sporting events but must use a seat that is at the end of the row or otherwise close to the bathroom. His use of "Depends" absorbent materials is confirmed in throughout Biloxi VAMC records; specifically 2014 Biloxi VAMC records note past history of urinary incontinence and frequency without further elaboration. Finally, a second VA examination of the Veteran's prostate was completed in June 2103 in connection with a separate claim for a TDIU. This examination revealed the following: (1) residual urinary dysfunction from prostate cancer, with no evidence of active disease, recurrence or metastasis or functional limitation; (2) a lack of endurance, and easy fatigue; (3) the use of adult diapers by the Veteran at night or when travelling outside of the home; (4) no flare-ups, and no further treatment post-radiation therapy; (5) use of absorbent materials which must be changed less than twice a day; (6) increased daytime urinary frequency with voiding every two to three hours; (7) nocturnia three to four times a night; (8) some slow or weak stream that was not so severe as to be "marked"; and (9) no kidney infections. The examiner did note ED, but opined that this was not the result of treatment related to prostate cancer and more likely than not caused by medications, advanced age, alcohol abuse, and tobacco use, and noted that the Veteran could achieve an erection and penetration with medication. First, the Board finds the Veteran and his daughters' lay statements as to his use of "Depends" and the effects of his prostate cancer residuals on his day-to-day life to be competent because such facts are readily observable to them, and are within their personal knowledge. Additionally the Board finds these statements to be credible because they are consistent with VA examinations, VA treatment records, and private medical record that are of record in this case. Second, the Board also finds both the December 2009 VA examination and the June 2013 examination to constitute competent and credible medical evidence because both examinations were conducted in person, present objective observations, were based on statements by the Veteran as well as a detailed medical history, and are largely supported by both VA and private treatment records as well as the aforementioned lay statements of record. Third, as the record does not reflect any renal dysfunction, it was appropriate for the RO to rate the Veteran according to the rating criteria for voiding dysfunction. Fourth, while the Veteran's symptoms meet both the 20 percent criteria for urine leakage and urinary frequency, they do not meet the criteria for obstructed voiding. This is because while the June 2013 examination did find some evidence of slow or weak stream, it did not find that this symptom was severe enough to be considered "marked." Therefore, on the basis of the Veteran's symptoms (daytime voiding, nocturnia, and changing of absorbent materials), the Board agrees that the most appropriate rating for the Veteran's prostate cancer residuals is 20 percent. In so deciding, the Board notes that it has considered the next highest rating level for urine leakage and urinary frequency, but has determined that the current manifestations of the Veteran's prostate cancer residuals do not more closely approximate a 40 percent rating under either category because the Veteran does not need to change his absorbent materials two or more times a day, and does not experience daytime voiding less than once per hour or nocturnia five times or more per night. As such, under the applicable VA schedular criteria, the Veteran is entitled to no higher than a 20 percent rating for his prostate cancer residuals. B. Extraschedular Considerations Certain exceptional or unusual circumstances may warrant remand to refer this claim for extraschedular consideration. 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). However, ordinarily only the rating schedule will apply unless there are exceptional or unusual factors which would render application of it impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate; if the schedular evaluations are inadequate, the Board proceeds to the second step. Id. At the second step, the Board must determine whether the claimant's disability picture exhibits factors described by or related to the "governing norm[s]" set forth by 38 C.F.R. § 3.321(b)(1), the regulation under which extraschedular ratings are assigned. Id. Namely, those governing norms are "marked interference with employment" or "frequent periods of hospitalization." See id. If the Veteran's disability picture exhibits these governing norms, the Board proceeds to the third step. Id. At the third and final step, the Board refers the Veteran's claim to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, the veteran's disability picture requires the assignment of an extraschedular rating. Id. With respect to the first step of the three part inquiry laid out in Thun v. Peake, 22 Vet App 111 (2008), the evidence in this case does not show an exceptional disability picture such that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptoms of the Veteran's prostate cancer residuals, and the established criteria found in the rating schedule for each disability demonstrates that the schedular ratings for this disability reasonably describes his prostate cancer residual symptoms. Further, as indicated by 38 C.F.R. § 4.1 "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." The only possible manifestation reflected in the Veteran's medical history that is not listed in the schedular ratings is the increase in ED subsequent to radiation treatment reported by the Veteran at the December 2009 VA examination. However, at that examination the Veteran reported an onset of ED prior to his prostate cancer diagnosis, both the December 2009 and June 2013 VA examinations noted several significant risk factors for ED unrelated to prostate cancer, and both examiners opined that the Veteran's ED was not caused by or related to his prostate cancer, with the June 2013 examiner opining that there was a greater than 50 percent probability the Veteran's ED was not caused by or related to the Veteran's prostate cancer, including residuals. Because there is no universal rule as to the competency of lay testimony on medical etiology, the Board must determine on a case-by-case basis whether a particular medical condition is a type of condition a lay person may competently testify to. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Although the Veteran is competent to state that his ED worsened after radiation treatment, his statement does not indicate that the radiation treatment or prostate cancer caused his ED to worsen, and even if his statement had so indicated, the Veteran is not competent to opine that his worsened ED was caused by radiation treatment. This is because, unlike the readily observable symptoms of ED, determining the underlying cause of ED requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. Cf. 492 F.3d at 1377 n.4. Such internal physical processes are not readily observable and are not within the competence of this Veteran, who has not been shown by the evidence of record to have medical training or skills. As a result, the persuasive value of his lay etiology opinion is low, while the probative value the VA examination opinions are higher. Accordingly, because there is not competent evidence of record suggesting that the Veteran's ED is a symptom of his prostate cancer residuals, the Veteran's prostate cancer residual symptoms do not represent such an exceptional disability picture that extraschedular considerations are required. Finally, the Board notes that under Johnson v. McDonald, 762 F. 3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. As such, this case does not present an exceptional circumstance under which extraschedular consideration is required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected conditions. Accordingly, referral for extraschedular compensation is not appropriate here. (Continued on the next page) ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an ulcer (claimed as a stomach condition) and to this extent only, the appeal is granted. Reduction of the disability rating for prostate cancer residuals was proper, and restoration of the prior 100 percent rating for prostate cancer effective November 30, 2010, is denied. Entitlement to a disability rating in excess of 20 percent for prostate cancer residuals is denied. REMAND I. Service Connection for an Ulcer, to Include as Secondary to Service-connected Hernia Conditions The Veteran seeks service connection for an ulcer. A review of the record reveals that the earliest treatment the Veteran received for peptic ulcer disease was at the Biloxi VAMC in November 1971, a little over two years after separation from service. The Veteran also claims that his ulcer condition may be secondary to service-connected disability. The Board notes that pursuant to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). In some cases a medical examination may also require an opinion as to etiology-the underlying medical cause of a particular disability or condition. Cf. id. The Board finds that the Veteran's ulcer condition is such a case. VA provided the Veteran with an examination in May 2011 after the Veteran filed an NOD requesting that his claim be re-characterized as service connection claim secondary to scar tissue from his hernia surgery. Prior to this NOD, the Veteran had sought to reopen his claim for service connection on a direct basis only. The May 2011 VA examiner observed that the Veteran's hernia surgery abdominal scars were linear, well-healed, superficial, and non-painful to touch, with no evidence of tissue loss or ulceration, with no resulting loss of function or motion. Although the examiner did note the Veteran's history of peptic ulcer disease and his related history of gastrointestinal surgeries, he opined that "to the best of [his] knowledge inguinal hernia repairs are not a risk factor for developing peptic ulcer or duodenal ulcer disease," and that therefore it was "less likely as not," or a less than 50 percent chance, that the Veteran's peptic ulcer disease or duodenal ulcer disease was caused by or the result of his service-connected bilateral inguinal hernia repairs. However, the examiner failed to provide an etiology opinion as to whether the Veteran's peptic ulcer disease has been aggravated by the Veteran's service-connected hernia conditions, and also failed to address the Veteran's prior theory of entitlement based on direct service connection. Accordingly, because there is evidence of record that the Veteran has a current diagnosis of peptic ulcer disease and the Veteran is service-connected for hernia conditions, a medical nexus opinion as to direct service connection and secondary service connection due to aggravation by his hernia conditions is required. As such, remand of this claim is required for further development consistent with the Board's duty to assist. II. TDIU As noted above, subsequent to the September 2010 RO decision on appeal, the Veteran was awarded a TDIU effective August 29, 2011 in a June 2014 rating decision based on having met the schedular criteria for the award of such benefits. It appears that the RO awarded such on the basis of the combined effects of the Veteran's service-connected disabilities. However, prior to August 29, 2011, the Veteran has a combined 50 percent disability evaluation (10 percent rating for depressive disorder; 20 percent rating for prostate cancer residuals; 10 percent for tinnitus; 10 percent rating for left inguinal herniorrhaphy; 10 percent for right inguinal herniorrhaphy; and 0 percent for bilateral hearing loss -- from March 18, 2011 to May 31, 2011 the Veteran was given a temporary 100 percent rating due to hospitalization related to his service-connected depressive disorder). Thus, he did not meet the schedular criteria for an award of a TDIU. See 38 C.F.R. § 4.16(a), (b) (2015). At the June 2013 VA examination, the Veteran stated that he quit his job as a construction inspector due to his prostate cancer because he constantly has to use the bathroom and had not gotten his strength back since radiation treatment. As such, the record raises the possibility that the Veteran is entitled to a TDIU prior to August 29, 2011 on an extraschedular basis. However, the Board cannot make such a determination in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (providing that the Board cannot consider entitlement to a total disability evaluation due to individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation and Pension if such consideration is warranted). The claim must therefore be remanded for such a referral. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the May 2011 VA ulcer examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the AOJ or the examiner. The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner must provide opinions as to the following: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's ulcer was proximately due to or the result of his service-connected hernia conditions. ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's ulcer was aggravated (permanently worsened) beyond its natural progression by his service-connected hernia conditions. iii. If the examiner finds that the Veteran's ulcer is NOT proximately due to, the result of, or aggravated by the Veteran's service-connected hernia conditions, whether it is at least as likely as not (50 percent or greater probability) the Veteran's ulcer: (1) began during active service; (2) is related to any in-service medical treatment; or (3) began within one year after discharge from active service. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for that conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. d. The examiner is advised that the law requires medical opinions must be both fully informed and explained. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. 2. Contact the Veteran and request that he submit a VA Form 21-8940, along with supporting documentation to substantiate his entitlement to a TDIU. 3. Then, schedule him for an examination with an appropriate clinician for a functional assessment of the social and industrial impairment caused by the Veteran's service-connected disabilities either singly or in combination with each other. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. 5. After undertaking any necessary additional development, readjudicate the issues on appeal including the issue of entitlement to a TDIU prior to August 29, 2011, including referral to the Director of the Compensation Service for extraschedular consideration. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs