Citation Nr: 1630020 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 11-15 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 60 percent for chronic prostatitis with recurrent right epididymitis, to include on an extraschedular basis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. The Veteran's service-connected chronic prostatitis with recurrent right epididymitis is manifested by urinary leakage/incontinence requiring the wearing of absorbent materials which must be changed more than 4 times per day. 2. The most probative evidence of record shows that the Veteran's service-connected chronic prostatitis with recurrent right epididymitis is not manifested by an exceptional or unusual disability picture such that an extraschedular evaluation is warranted at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for an evaluation higher than 60 percent for the Veteran's service-connected chronic prostatitis with recurrent right epididymitis, to include on an extraschedular basis, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.115a, Diagnostic Codes 7527 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, a standard August 2009 letter satisfied the duty to notify provisions. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's service treatment records have been obtained. Post-service VA treatment records have also been obtained, The Veteran was provided VA medical examinations in September 2009 and April 2014. The examinations are sufficient evidence for deciding the claim. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for chronic prostatitis with recurrent right epididymitis. Prostatitis is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7527, either as a urinary tract infection or as voiding dysfunction, whichever is predominant. As discussed more fully below, the Veteran's disability is most appropriately evaluated in terms of voiding dysfunction because the medical evidence of record does not demonstrate that urinary tract infections are the predominant disability resulting from the service-connected prostatitis. Voiding dysfunction is rated under three subcategories, consisting of: urinary frequency, voiding dysfunction, and obstructed voiding. 38 C.F.R. § 4.115a (2015). The Veteran is currently rated as 60 percent disabled under the subcategory of voiding dysfunction. The subcategories of urinary frequency and obstructed voiding do not provide for ratings in excess of 60 percent. Thus, further discussion of the rating criteria under those subcategories is not required. For voiding dysfunction, a 60 percent rating is provided where the disability requires the use of an appliance or the wearing of absorbent material which must be changed more than 4 times per day. A 60 percent rating is the maximum schedular rating that can be assigned for prostatitis predominantly manifested by voiding dysfunction. The Board observes that, under Diagnostic Code 7527, schedular ratings in excess of 60 percent are provided for prostate gland disabilities that are predominantly manifested by urinary tract infection with poor renal function. Specifically, where urinary tract infection with poor renal function is the predominant manifestation of the prostate gland disability, a schedular ratings of 80 percent is warranted where there is evidence of renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is awarded where there is evidence of renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. The Veteran was afforded a VA examination in September 2009. He reported urinating 24 times a day, at intervals of every 15 minutes. He also reported urinating 10 times at night, at intervals of an hour. He noted problems starting urination and described his urine flow as weak, hesitating and burning. Urinary incontinence which required a pad as often as 12 times per day was noted. He did not require an appliance. He noted impotency since his prostate surgery in 2005 and that he couldn't achieve or maintain an erection. He reported that it hurt to stand 8 hours a day for his job and that he couldn't lift anything. He noted constant pain. Upon examination, no hemorrhoids, fissures or masses were found. His rectal examination findings were normal. Examination of the penis and testicles resulted in normal findings. The VA examiner noted that laboratory results revealed pyuria and hematuria. A diagnosis of prostatitis with recurrent right epididymitis was provided. At the Veteran's July 2012 Central Office Board hearing, the Veteran stated that he experienced pain and swelling in his groin. He reported that he took medication due to his constant pain. He noted urinary frequency. He also noted that he used an appliance for vacuum therapy. He reported going to the Emergency Room because of swelling of the epididymitis. The Veteran reported that he was employed as a lot attendant and that he had lost time from work due to the pain experienced from his condition. VA treatment record dated in September 2012 shows that the Veteran underwent a transurethral resection of the prostate due to blockage of urine flow through the urethra. A March 2013 VA treatment record shows that the Veteran complained of episodic groin pain. Normal phallus and urethra and normal scrotal contents were found. Rectal tone was good. A February 2014 VA treatment record shows that the Veteran's voiding patterns were without difficulty. The Veteran was afforded a VA examination in April 2014. The Veteran reported pain in his right testicle and the feeling to urinate "all the time." He noted that the pain as constant. He also noted a slow urine stream and unpredictable urine which ran down his leg while walking. He reported changing an absorbent material 4 to 5 times a day. He noted being up about every hour at night due to feeling the need to urinate. He stated that there was a brief improvement in symptoms after each prostate resection. It was reported that this treatment was ongoing. It was noted that at times, the Veteran is noncompliant with his medication but that he was currently taking his medication. A diagnosis of prostatitis with recurrent right epididymitis was provided. It was noted that the Veteran had mild functional limitation, residual intermittent hematuria without anemia and recurrent bladder outlet obstruction with urinary incontinence. The examination report reflects that the left testicle was absent and the right testicle was tender. Right varicocele with residual chronic right testicular pain with mild functional limitations was noted. No significant hydrocele was found. Normal kidney functions were found. The VA examiner stated that the Veteran's predominant impairment, based on the Veteran's testimony and evidence, was painful right testicle and urinary incontinence due to incompetent urethral valve and uncomplete emptying due to prostatic hypertrophy. The current urinalysis showed no chronic infection. No appliance was required for management or urinary symptoms. It was noted that the appliance described by the Veteran was a vacuum pump for erectile dysfunction. The Veteran reported placing a wash cloth (absorbent material) to prepare for urine leakage during the hour and a half drive to the VA Medical Center. The VA examiner inspected the wash cloth and found it to be dry, free from urine. Voiding dysfunction due to congenital verumontanum (urethral obstruction) and prostatic hypertrophy of aging was found. It was noted that the voiding dysfunction caused urine leakage with required absorbent material which much be changed two to 4 times per day. Increased urinary frequency of daytime voiding intervals between 1 and 2 hours and nighttime awakening to void 5 or more times was reported. Hesitancy, slow stream, weak stream, decreased force of stream and marked obstructive symptomatology was noted. No other obstructive symptoms were found. It was noted that dilation treatment occurred once every two years. The Veteran is assigned the maximum rating for voiding dysfunction under Diagnostic Code 7527. The Board finds that an evaluation in excess of 60 percent is not warranted. A higher rating could only be assigned based on the criteria for renal dysfunction. The record is absent for evidence that the Veteran's service-connected chronic prostatitis with recurrent right epididymitis is predominantly manifested by a voiding dysfunction with poor renal function. The April 2014 VA examination report reflects that the urinalysis showed no chronic infection and that the Veteran had normal kidney functions. As such, no higher schedular rating is available to the Veteran for his prostatitis. The claim must be denied. In reaching the above conclusion, the Board considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration Pertinent regulation provides that, in exceptional cases, where schedular evaluations are found to be inadequate, the RO may refer a claim to VA's Director, Compensation and Pension Service, for consideration of an "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board's March 2014 remand included a directive to forward the case to VA's Director, Compensation and Pension Service, for extraschedular analysis. In a December 2014 memorandum, VA's Director of Compensation Service determined that an extraschedular rating was not warranted. He found that Veteran's medical records, as well as the VA examination in April 2014, did not present an exceptional or unusual picture which caused marked interference with employment or frequent periods of hospitalization. It was noted that the VA examiner stated that the Veteran's condition would not have any impact on his ability to work. He also stated that there were records which revealed noncompliance with the recommended treatment. He explained that the totality of the evidence does not support the contention that the Veteran's service-connected disability was so exceptional or unusual as to render the application of the schedule standards impractical. He denied entitlement to an extra-schedular evaluation. The Board has considered the C&P Director's December 2014 conclusion as well as the Veteran's complaints regarding frequent voiding (the need to wear and change absorbent materials several times per day and voiding intervals at night), slow stream, hesitancy, urgency, and groin pain. Upon review of the evidence of record, the Board agrees with the assessment of the Director of C&P that the Veteran does not warrant an extraschedular evaluation for his service-connected chronic prostatitis with recurrent right epididymitis because the evidence does not demonstrate that such disability has produced an exceptional or unusual disability picture. See Thun, 22 Vet. App. at 115. The Board points out that the Veteran is currently rated at the maximum allowable schedular rating for a voiding dysfunction involving urine leakage, urinary frequency, or obstructive voiding, absent kidney involvement. See 38 C.F.R. § 4.115a. Notably, a 60 percent evaluation is warranted for urinary leakage requiring the use of absorbent materials which must be changed more than four times a day. Id. There is no evidence of record indicating that the Veteran's disability is not fully contemplated by the 60 percent disability evaluation. To the extent that the Veteran himself believes that his disability entitles him to compensation on an extraschedular basis, the Board notes that the Veteran is competent to provide lay evidence concerning factual matters of which he has first-hand knowledge such as the symptoms he experiences and their actual effect on his daily tasks/employment. However, in determining the impact of such effects on his overall occupational functioning as well as whether his disability picture presents an unusual or exceptional circumstance, the Board, in this case, has placed greater probative weight on the pertinent medical evidence of record which demonstrates that his service-connected disability is manifested by symptomatology that is adequately contemplated by the regular schedular standards. As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such is raised by the record. At this July 2012 Board hearing, the Veteran noted that he worked as a lot attendant. He stated that he had lost time from work possibly once or twice a week due to his service-connected disability. At the Veteran's April 2014 VA examination, he reported that he had stopped working due to his "heart" reports. The VA examiner noted a February 2014 VA treatment record in which the Veteran stated that he stopped working in due to being tired of the long drive to work. Although the Veteran had reportedly missed some time from work, and has subsequently stopped working, he has not contended, and there is no evidence of record, showing that that his chronic prostatitis with recurrent right epididymitis renders him unemployable. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. ORDER Entitlement to an evaluation in excess of 60 percent for chronic prostatitis with recurrent right epididymitis, to include on an extraschedular basis, is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs