Citation Nr: 1635730 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 14-28 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected residuals, prostate cancer, based on a claim that there was clear and unmistakable error (CUE) in an RO rating decision, dated in July 2007, which granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling. 2. Entitlement to an increased rating for service-connected prostate cancer, status post prostatectomy, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for service-connected scar, residual, status post prostatectomy, currently evaluated as 10 percent disabling. 4. Entitlement to a compensable rating for service-connected erectile dysfunction. REPRESENTATION Appellant represented by: Rick Little, Agent ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from February 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2013, the RO denied a claim for a rating in excess of 10 percent for service-connected residuals, prostate cancer, based on a claim that there was CUE in an RO rating decision, dated in July 2007, which granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling, denied a claim for an increased rating for service-connected prostate cancer, status post prostatectomy, evaluated as 10 percent disabling, and granted service connection for scar, residual, status post prostatectomy, evaluated as 10 percent disabling. In May 2013, the RO denied a claim for a compensable rating for service-connected erectile dysfunction. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. The RO's July 2007 decision was not based on CUE as it represented reasonable application of the known facts to the law then in existence; the factual evidence and competent medical opinion of record did not show that a rating in excess of 10 percent was warranted for his residuals, prostate cancer with residual scar. 2. The Veteran's service-connected prostate cancer, status post prostatectomy, is not shown to be manifested by local reoccurrence or metastasis; it is not shown to have been productive of the need to wear absorbent material, which must be changed less than 2 times per day, a daytime voiding interval between one and two hours, or awakening to void three to four times per night, or renal dysfunction. 3. The Veteran's service-connected scar, residual, status post prostatectomy, is not shown to cover an area or areas of at least 12 square inches (77 sq. cm.), to be productive of at least three scars that are painful or unstable, or to cause a limitation of function. 4. The Veteran's erectile dysfunction is not shown to have been manifested by penile deformity. CONCLUSIONS OF LAW 1. The RO's July 2007 rating decision, which granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling, was not clearly and unmistakably erroneous; that unappealed rating action is final. 38 U.S.C.A. §§ 5107, 7105 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.104, 3.105(a) (2015). 2. The criteria for a rating in excess of 10 percent for service-connected prostate cancer, status post prostatectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2015). 3. The criteria for a rating in excess of 10 percent for service-connected scar, residual, status post prostatectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014 & Supp. 2015); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804 and 7805 (2015). 4. The criteria for a compensable rating for service-connected erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.321, 4.115b, Diagnostic Code 7522 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to a rating in excess of 10 percent for service-connected residuals, prostate cancer, based on a claim that there was CUE in an RO rating decision, dated in July 2007, which granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling. He also argues that he is entitled to an increased rating for service-connected prostate cancer, status post prostatectomy, currently evaluated as 10 percent disabling, an increased rating for service-connected scar, residual, status post prostatectomy, currently evaluated as 10 percent disabling, and a compensable rating for service-connected erectile dysfunction. The Veteran is shown to have served in Vietnam; his awards include the Vietnam Service Medal and the Vietnam Campaign Medal. On September 30, 2005, the Veteran underwent an uneventful radical retropubic prostatectomy and bilateral pelvic iliac lymphadenectomy via nerve sparing technique. In July 2007, the RO granted service connection for residuals of prostate cancer with residual scar, evaluated as 10 percent disabling, with an effective date of December 14, 2006, based on the presumptions afforded Veterans who served in Vietnam and who are presumed to have been exposed to Agent Orange. See 38 C.F.R. §§ 3.307, 3.309 (2015). The RO also granted service connection for erectile dysfunction, evaluated as noncompensable (0 percent disabling), with an effective date of December 14, 2006, and granted special monthly compensation based on loss of use of a creative organ, with an effective date of December 14, 2006. See 38 U.S.C.A. § 1114k (West 2014 & Supp. 2015); 38 C.F.R. § 3.350(a) (2015). There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (2015). I. Clear and Unmistakable Error The Veteran argues that there was CUE in the RO's July 2007 rating decision. It is argued that the Veteran should have been initially rated as 100 percent disabling. Citing 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-4. "It must always be remembered that CUE is a very specific and rare kind of 'error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-prong test to determine whether clear and unmistakable error is present in a prior determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. To establish a valid claim of CUE, the claimant must demonstrate that either the correct facts, as they were known at the time, were not before the adjudicator, or that statutory or regulatory provisions extant at the time were incorrectly applied. Daniels v. Gober, 10 Vet. App. 474 (1997). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be of fact or of law and, when called to the attention of later reviewers, compels the conclusion to which reasonable minds could not differ that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. Allegations that previous adjudications had improperly weighed and evaluated the evidence also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43-44. On December 14, 2006, the Veteran filed his claim for service connection for prostate cancer. In July 2007, the RO granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling, with an effective date of December 14, 2006. In February 2012, the Veteran filed a CUE claim, arguing that he should have been evaluated as 100 percent disabling "effective July 2005," and continued for a six-month period following "his final October 3, 2005 treatment." See Veteran's representative's statement, received in February 2012. In January 2013, the RO denied the CUE claim. The RO explained that although the Veteran's prostate cancer occurred in July 2005, his claim was not received until December 14, 2006, and that under 38 C.F.R. § 3.400(b)(2), the date of receipt of his claim was the earliest date upon which service connection could be granted. The evidence of record at the time of the July 2007 rating decision included the Veteran's service treatment records, which did not contain any relevant findings or diagnoses. Following service, the evidence includes a private July 2005 biopsy report which noted adenocarcinoma of the prostate. Reports from the USC/Norris Cancer Center (USC/NCC), dated in August 2005, show that the Veteran was noted to have a history of smoking for 30 years, with recent treatment for mild lower urinary tract symptoms, followed by a diagnosis of adenocarcinoma of the prostate. On September 30, 2005, he underwent an uneventful radical retropubic prostatectomy and bilateral pelvic iliac lymphadenectomy via nerve sparing technique. The operative report notes that he was extubated without difficulty and remained completely stable and was sent to the postoperative recovery room, and that he tolerated the procedure very well without complications. A USC/NCC report, dated October 2, 2005, states that, "There were absolutely no intraoperative or postoperative complications." On the first postoperative day he was ambulatory and tolerating a regular diet. On the second postoperative day, his Penrose drain was removed and he was discharged to home with routine instructions and medications. His discharge condition was characterized as "good." A USC/NCC report, dated November 21, 2005, notes that he was improved from a clinical perspective and that he "basically has complete daytime and nighttime control." He was encouraged to wean off his pads over the next several months. He was otherwise without complaints. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014 & Sup. 2015); 38 C.F.R. § 3.303 (2015). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. Part 4 (2015). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, a 100 percent rating is assignable for malignant neoplasms of the genitourinary system. The note following this diagnostic code indicates that, following the cessation or surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then a veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "[s]ection 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid." Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). The Board finds that there was no CUE in the July 2007 rating decision, which granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling, with an effective date of December 14, 2006. As explained below, the fundamental issue is the correct date of service connection. The Board will therefore discuss whether the RO's assignment of an effective date of December 14, 2006 was correct, to include whether any exceptions apply to the rules for effective dates. The Veteran's claim of entitlement to service connection for prostate cancer (VA Form 21-526) was received by VA on December 14, 2006. There is no indication in the claims file that any attempt was made, by the Veteran, or any authorized representative, to seek service connection for prostate cancer prior to that date. The Board first notes that the Veteran is a Nehmer class member. Specifically, the record shows that the Veteran served in the Republic of Vietnam, and that in July 2007 he was granted presumptive service connection for prostate cancer based on presumed exposure to herbicides during such service. As such, he is a Nehmer class member. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). However, the Veteran was not denied compensation for prostate cancer between September 25, 1985, and May 3, 1989. He did not submit a claim for service connection for such condition between May 3, 1989, and November 7, 1996, the date on which the liberalizing law that added prostate cancer as a disease presumptively due to in-service exposure to herbicides became effective. See 61 Fed. Reg. 57,586 - 57,589 (Nov. 7, 1996). As such, the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). With regard to and 38 C.F.R. § 3.114, VA added prostate cancer to the list of diseases associated with exposure to certain herbicide agents on November 7, 1996. The date the VA received the Veteran's claim for service connection for prostate cancer was December 14, 2006. The earliest date upon which the evidence of record demonstrates that the Veteran had prostate cancer is July 2005. As such, eligibility did not exist continuously from the effective date of the liberalizing law through the date of claim, and 38 C.F.R. § 3.114 is thus not applicable. With regard to and 38 C.F.R. § 3.400, the Veteran's claim of entitlement to service connection for prostate cancer (VA Form 21-526) was received by VA on December 14, 2006. The record does not include any communication from the Veteran (or his representative or other person noted in 38 C.F.R. § 3.155) that may reasonably be construed as an indication that he was seeking service connection prostate cancer prior to that date. Given the foregoing, the earliest possible effective date for the grant of service connection for prostate cancer is December 14, 2006. Id.; Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."). The Board has determined that the RO correctly assigned an effective date for service connection of December 14, 2006. The next issue is whether a 100 percent rating was warranted. The medical evidence shows that the Veteran's prostate cancer was diagnosed in about July 2005, and that he underwent surgery on September 30, 2005. His last treatment for this disability was in October 2005. This treatment was therefore all prior to the date of service connection. At the time of the RO's July 2007 rating decision, there was no evidence of recurrence of his prostate cancer. The 100 percent rating under DC 7528 is assignable for malignant neoplasms of the genitourinary system following the cessation or surgery, chemotherapy, or other therapeutic procedure, (emphasis added). If there has been no local reoccurrence or metastasis, then a veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. Id. As the Veteran's surgery and last treatment occurred prior to the date of receipt of his claim (i.e., prior to December 14, 2006), a 100 percent rating under DC 7528 was not warranted. DC 7528 makes it clear that although a veteran may have residuals of prostate cancer, residuals alone cannot serve as a basis for a 100 percent evaluation for prostate cancer. Therefore, CUE is not shown as to this issue. The remaining issue is whether the RO's assignment of a 10 percent rating under DC 7528 was CUE. Under 38 C.F.R. § 4.115a, in evaluating voiding dysfunction, rate particular condition as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: With regard to the criteria for voiding dysfunction, a 20 percent rating is warranted for: Voiding dysfunction, requiring the wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a. With regard to the criteria for urinary frequency, 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 interval between one and two hours, or; awakening to void three to four times per night. Id. At the time of the RO's July 2007 rating decision, the medical evidence included a QTC examination report, dated in May 2007. This report shows the following: the Veteran's treatment for his status post prostatectomy for prostate cancer has been completed. His malignancy has been in full remission for 19 months, and there has been no metastasis. The Veteran complained of occasional urinary incontinence. He does not require a pad or any absorbent material, or an appliance. There were no current symptoms attributed to his scar, which was 20 centimeters (cm.) x 1 cm. with hyperpigmentation of less than six square inches. With regard to his scar, there was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation or abnormal texture. The diagnosis was status post radical retropubic prostatectomy for prostate cancer with residual scar. The Board finds the CUE as to the 10 percent rating assigned is not shown. At the time of the RO's July 2007 rating decision, there was no evidence to show that the Veteran required wearing absorbent materials which had to be changed less than 2 times per day, and no evidence to show a daytime voiding interval between one and two hours, or awakening to void three to four times per night. The only relevant evidence was the May 2007 QTC examination report, which showed that the Veteran complained of occasional urinary incontinence, and that he did not require a pad or any absorbent material, or an appliance. There was no evidence of renal dysfunction. With regard to his scar, there was no evidence to show that a separate compensable rating was warranted for his scar under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 (2008). Specifically, there was no evidence to show that his scar was productive of deep scars or scars that cause limited motion, superficial scars that do not cause limited motion with an area or areas of 144 square inches, "superficial and unstable scars," or "superficial scars that are painful on examination," or a limitation of function. Based on the foregoing, there is no evidence of an "undebatable" error, which, had it not been made, would have manifestly changed the outcome at the time it was made. Luallen. Rather, a review of the evidence, and the applicable statutory and regulatory provisions, clearly demonstrates that there was no failure by that RO to apply the correct statutory and regulatory provisions to the correct and relevant facts. II. Compensable and Increased Ratings On February 1, 2012, the Veteran filed claims for compensable/increased ratings. In January 2013, the RO denied a claim for an increased rating for service-connected prostate cancer, status post prostatectomy, evaluated as 10 percent disabling, and granted a separate 10 percent rating for service-connected scar, residual, status post prostatectomy, with an effective date of February 1, 2012. In May 2013, the RO denied a claim for a compensable rating for service-connected erectile dysfunction. The Veteran has appealed the issues of entitlement to increased ratings for service-connected prostate cancer, status post prostatectomy, and service-connected scar, residual, status post prostatectomy, and entitlement to a compensable rating for service-connected erectile dysfunction. A. Prostate Cancer, Status Post Prostatectomy Under 38 C.F.R. § 4.115a, in evaluating voiding dysfunction, rate particular condition as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: With regard to the criteria for voiding dysfunction, a 20 percent rating is warranted for: Voiding dysfunction, requiring the wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a. With regard to the criteria for urinary frequency, a 20 percent rating is warranted for: Daytime voiding interval between one and two hours, or; awakening to void three to four times per night. Reports from USC/NCC include a July 2012 report which notes that the Veteran has excellent urinary control, and that he does not wear any pads. He had "very rare incontinence after voiding." The report notes, "Otherwise he was doing well and had no real complaints." Reports, dated in January 2013, note that the Veteran stated that he was doing well and indicated that there were no problems. It was noted that his PSA has been undetectable since his September 2005 surgery, and that he does not wear any pads day or night. He has an excellent urinary steam and has no other urinary issues. There was no current evidence of disease recurrence. A VA prostate cancer disability benefits questionnaire (DBQ), dated in December 2012, completed by Dr. K, shows the following: the Veteran underwent surgery for removal of his prostate in September 2005. His disease was in remission. There was voiding dysfunction, specifically, urine leakage, but the Veteran does not require and does not use absorbent material. There was urinary frequency, specifically, with a daytime voiding interval between two and three hours. There were no signs or symptoms of obstructed voiding, and no recurrent symptomatic urinary tract infections. The examiner indicated that his prostate cancer did not affect his ability to work. The diagnosis was prostate cancer status post prostatectomy, with a date of diagnosis of 2005. The Board notes that the relevant findings in the prostate cancer DBQ are repeated in a VA male reproductive system DBQ, also dated in December 2012, which was completed by the same examiner (Dr. K). The Board finds that the claim must be denied. Although the Veteran has residuals of prostate cancer, a rating in excess of 10 percent is not warranted. There is no evidence to show that the Veteran is required to wear of absorbent materials which must be changed less than 2 times per day, or that he has a daytime voiding interval between one and two hours, or that he awakens to void three to four times per night. Accordingly, as the evidence is insufficient to show that the criteria for a rating in excess of 10 percent have been met for the Veteran's service-connected prostate cancer, status post prostatectomy, at any time during the rating period on appeal, the Board concludes that his symptoms more closely approximate the criteria for the currently assigned rating of 10 percent. B. Scar, Residual, Status Post Prostatectomy In February 2012, the Veteran filed a claim for an increased rating for his service-connected prostate cancer, status post prostatectomy. In January 2013, the RO granted the claim, to the extent that it granted a separate 10 percent rating for scar, residual, status post prostatectomy, with an effective date of February 1, 2012; the Veteran's scar had previously been evaluated together with his service-connected prostate cancer, status post prostatectomy. Under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802, (2015), a 10 percent evaluation is warranted for: "scars, other than head, face, or neck," that inter alia cover an area or areas exceeding 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A 20 percent rating is warranted for scars covering an area or areas covering at least 12 square inches (77 sq. cm.), but less than 72 square inches (465 sq. cm.). Id. Under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015), a 10 percent evaluation is warranted for one or two superficial scars that are painful or unstable. For a 20 percent rating, there must be three or four scars that are painful or unstable. Id. Under 38 C.F.R. § 4.118, Diagnostic Code 7805, scars may be rated on limitation of function of the affected part. The relevant notes pertaining to these regulations (re-numbered) are shown below: (1) A deep scar is one associated with underlying soft tissue damage. (2) A superficial scar is one not associated with underlying soft tissue damage. (3) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A VA scar DBQ, dated in December 2012, shows that the Veteran was noted to have a scar extending from his navel to just above his penis due to prostate cancer surgery in September 2005. The scar was noted to be painful, more specifically, the Veteran complained that it was itchy with discomfort. There were no unstable scars, with frequent loss of covering of the skin over the scar, no scars that were both painful and unstable, and no burn scars. None of the extremities were affected by the scar, which is located on the anterior trunk, and was 7.5 cm. long. There were no superficial non-linear scars, and no deep non-linear scars. The examiner indicated that his scar did not affect his ability to work. Reports from USC/NCC, dated in July 2012 and January 2013, note that the Veteran's midline incision had healed "quite well." The Board finds that a rating in excess of 10 percent is not warranted. The evidence is insufficient to show that the Veteran's service-connected scar covers an area or areas of at least 12 square inches (77 sq. cm.), or that the Veteran has three or four scars that are painful or unstable. There is no evidence to show that his scar causes a limitation of function. Given the foregoing, the criteria for a rating in excess of 10 percent for service-connected scar, residual, status post prostatectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. C. Erectile Dysfunction With regard to erectile dysfunction, this condition is rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522, which pertains to deformity of the penis with loss of erectile power. This is the only diagnostic code that specifically addresses erectile function. The Board can identify no more appropriate diagnostic code and the Veteran has not identified one. Butts v. Brown, 5 Vet. App. 532 (1993). Accordingly, the Board will proceed with an analysis of the Veteran's disability under that diagnostic code. Diagnostic Code 7522 provides for a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), DC 7522. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2015). The Board notes that reports from USC/NCC, dated in July 2012, list the Veteran's name at the top and show treatment for a tumor of the left testicle that included chemotherapy. However, the report indicates that the patient was 22 years old (the Veteran was 62 years old in July 2012), and there is no other medical evidence to show that the Veteran has a mass or tumor involving a testicle. It therefore appears that this report is mis-labeled, and that it pertains to someone other than the Veteran. It is therefore afforded no probative value. Other USC/NCC reports, dated between 2012 and 2013, note erectile dysfunction with some spontaneous erections, or alternatively, occasional morning erections with no spontaneous erections. They also note normal epididymis and cord structures, bilaterally descended testes that are normal to palpation, and use of Cialis. A male reproductive system DBQ, dated in December 2012, notes the following: the Veteran has a history of removal of his prostate gland in September 2005. Since his surgery, he has been unable to have an erection, even with medication. He takes Viagra and Cialis. He has erectile dysfunction due to his prostatectomy. On examination, the penis and testes were normal. The Veteran' condition does not impact his ability to work. The Board finds that a compensable rating for erectile dysfunction is not warranted. The Veteran has been diagnosed with loss of erectile power (erectile dysfunction). The Veteran has not asserted that he has penile deformity, and there is no medical evidence of penile deformity. Where both loss of erectile power and deformity are not demonstrated, a 0 percent rating will be assigned. As no penile deformity has been shown, the Board finds that the Veteran is not entitled to a compensable rating. 38 C.F.R. § 4.20. Accordingly, the Veteran is not entitled to a compensable rating for erectile dysfunction. D. Conclusion In reaching these decisions, the Board has considered the written testimony of the Veteran. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the Board has determined that the medical evidence is more probative of the issues, and that it outweighs the lay statements. Accordingly, the Veteran's claims must be denied. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "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) (2015); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2015); Thun, 22 Vet. App. at 116. The schedular evaluations in this case are not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disabilities are congruent with the disability picture represented by the disability ratings assigned herein. The criteria for the ratings currently assigned more than reasonably describe the Veteran's disability levels and symptomatology. The Veteran is shown to have a history of prostatectomy with occasional urinary symptoms, without the use of pads or absorbent materials, and erectile dysfunction. The rating schedule contemplates these symptoms. Given the ways in which the rating schedule contemplates impairment for the Veteran's disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's disabilities because the rating criteria reasonably describe his disability levels and symptomatology. Thun, 22 Vet. App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). In this case, the December 2012 VA DBQs state that none of the Veteran's disabilities impact his ability to work. The Veteran does not contend, and the evidence of record does not suggest, that any of the disabilities in issue have caused him to miss work, or have resulted in any hospitalization during the time period on appeal. A July 2012 report from USC/NCC notes that he is employed. The Board finds, therefore, that the Veteran's service-connected disabilities in issue do not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. In deciding the Veteran's claims, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to increased ratings for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's ratings should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disabilities on appeal such that increased ratings are warranted. Finally, although the Veteran has submitted evidence of medical disability, and is presumed to have made claims for the highest ratings possible, he has not submitted evidence of his unemployability, or claimed to be unemployable due to any of the service-connected disabilities in issue. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In reaching these decisions, the Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claims, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). For the CUE claim on appeal, the VCAA, and its implementing regulations, codified in part at 38 C.F.R. § 3.159, are not applicable to CUE claims. See Simmons v. Principi, 17 Vet. App. 104, 109 (2003); Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001). For all other claims, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has not indicated that such records exist, and all pertinent records have been obtained. The Veteran has been afforded examinations. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The July 2007 rating decision, which granted service connection for residuals, prostate cancer with residual scar, evaluated as 10 percent disabling, was not clearly and unmistakably erroneous; the appeal is denied. A rating in excess of 10 percent for service-connected prostate cancer, status post prostatectomy, is denied. A rating in excess of 10 percent for service-connected scar, residual, status post prostatectomy, is denied. A compensable rating for service-connected erectile dysfunction is denied. ____________________________________________ JOHN J. CROLWEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs