Citation Nr: 1703271 Decision Date: 02/03/17 Archive Date: 02/15/17 DOCKET NO. 06-11 242A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased initial rating for urinary frequency associated with diabetes mellitus, type II. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from November 1990 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for urinary frequency and assigned an initial rating of 20 percent, effective November 29, 2004. During the pendency of the appeal, an October 2013 rating decision granted the Veteran a retroactive 40 percent rating, effective March 12, 2000. This case was previously before the Board in June 2012 and June 2015, when it was remanded for additional development. The matter is again before the Board. With regard to the issue on appeal, as noted above, in an October 2013 rating decision, the RO effectuated the June 2012 Board decision which granted an effective date of March 12, 2000, but no earlier, for the grant of service connection for urinary frequency. Although the Veteran's representative filed a notice of disagreement with this rating decision, this rating decision merely implemented the Board's June 2012 decision. A Board decision becomes final when issued, unless the case is further appealed to the court or a motion for reconsideration is granted. 38 U.S.C.A. § 7104 (b) (West 2014); 38 C.F.R. § 20.1100 (2016). To allow the Veteran to appeal the October 2013 rating decision with respect to the effective date assigned for the grant of service connection for urinary frequency determined by the Board would impermissibly obviate the finality of the Board decision on this issue. Accordingly, the issue of an earlier effective date for the grant of service connection for urinary frequency is not in appellate status at this time. FINDING OF FACT Throughout the entire period on appeal, the Veteran's service-connected urinary frequency was manifested by, at worst, a daytime voiding interval less than one hour, awaking to void five or more times per night, weakened urinary stream, and urinary incontinence that does not require a pad, absorbent, material, or appliance. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for urinary frequency have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7542 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall As noted above, this matter was previously before the Board in June 2012 and June 2015. The June 2012 remand directed that the Veteran be afforded a VA examination to determine the nature and severity of his service-connected urinary frequency, and that the claim be readjudicated and returned to the Board. The Veteran was provided a VA general medical examination in July 2013, and the matter was returned to the Board. In June 2015, the Board remanded the claim for the issuance of a supplemental statement of the case (SSOC). The Veteran was provided another VA examination in March 2016, and the claim was readjudicated in a March 2016. Therefore, the AOJ substantially complied with the Board's the prior remand directives and the Board may now proceed with the adjudication of the claim. Duties to Notify and Assist VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). This appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that section 5103(a) notice is no longer required after service-connection is awarded). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records, private and VA treatment records, and Social Security Administration (SSA) records are on file, as are his VA examination reports. Moreover, the Board finds that the VA examination reports are adequate for rating purposes as the examiners reviewed the record and made relevant findings regarding the severity of the Veteran's urinary frequency. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2016). Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2016); and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection for urinary frequency was established in a January 2005 rating decision that is the subject of the appeal. The RO assigned a 20 percent rating pursuant to 38 C.F.R. § 4.115b, 7599-7542. During the pendency of the appeal, an October 2013 rating decision granted a 40 percent rating for the entire period on appeal. Pursuant to 38 C.F.R. § 4.27 (2016), hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." Hence, the Veteran's urinary frequency has been evaluated by analogy, using the criteria for a neurogenic bladder under Diagnostic Code 7542. Neurogenic bladder is rated under the criteria of 38 C.F.R. § 4.115b, Diagnostic Code 7542 (2016). In turn, Diagnostic Code 7542 provides that the disability should be rated as a voiding dysfunction under the criteria of 38 C.F.R. § 4.115a (2016). Under 38 C.F.R. § 4.115a (2016), voiding dysfunction is rated with regard to the Veteran's predominate area of dysfunction: urine leakage, frequency, or obstructed voiding. With regard to frequency, a 40 percent rating is the maximum available rating for urinary frequency. A 40 percent rating is assigned for a daytime voiding interval of less than one hour or awakening to void five or more times per night; or, with requirement for the wearing of absorbent materials that must be changed two to four times per day. Id. With regard to urine leakage, a 40 percent rating is assigned with the wearing of absorbent materials that must be changed two to four times per day. Id. A 60 percent rating is assigned with the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. With regard to obstructed voiding, the maximum available rating is 30 percent. Accordingly, as a rating in excess of 40 percent is not available and this criteria need not be considered. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his urinary frequency is worse than currently rated and that his symptoms warrant a higher rating for the entire period on appeal. In a March 2000 correspondence, the Veteran reported that his diabetes resulted in a frequent need to urinate. A March 2001 VA diabetes examination report indicated that the Veteran had "extreme urinary frequency" secondary to his diabetes. On a July 2002 past medical history form from the Spokane Falls Family Clinic, the Veteran denied night urinary frequency and weak urine stream, but endorsed urinary urgency. A December 2004 VA examination report noted that the Veteran's diabetes resulted in bladder dysfunction, which was partial in nature. It was noted that during the day the Veteran urinated approximately 5times at intervals of every 90 minutes. He urinated approximately 3 times per night at intervals of 120 minutes. The Veteran was noted to have urine incontinence that did not require a pad, absorbent material, or appliance. In his March 2005 notice of disagreement the Veteran stated that he had been experiencing longstanding urinary frequency. A December 2005 letter from Dr. J. C. of the Spokane Falls Family Clinic indicated that the Veteran experienced urinary urgency. In a March 2006 correspondence, the Veteran reported that he woke up 7-8 times per night to go to the bathroom and went to the bathroom approximately every 45 minutes to an hour. A June 2006 VA examination report noted that the Veteran did not have bladder dysfunction, but did require frequent urination. It was noted that the Veteran urinated 12-15 times per day, and 7-10 times per night, but did not require the use of a pad. An October 17, 2006 treatment record indicated that the Veteran denied experiencing an inability to urinate, incontinence, eneuresis, nocturia, and stream difficulty. It was noted that the Veteran was scheduled for a circumcision later that month. Subsequent to his surgery the Veteran reported experiencing some urinary retention. A February 2007 VA treatment record noted that the Veteran experienced no voiding difficulty, despite his initial postoperative urine retention. A September 2008 VA diabetes examination report indicated that the Veteran denied experiencing urinary incontinence. An April 28, 2009 VA treatment record indicated that the Veteran denied urinary symptoms including discharge, hesitancy, sensation of incomplete void, slow stream, and urgency. A May 5, 2009 treatment record from the Rockwood Clinic indicated that the Veteran denied urinary symptoms of discharge, frequency, hesitancy, urgency, decreased force of stream, nocturia, and incontinence. A July 8, 2009 treatment record from the same provider noted that the Veteran reported decreased libido and erectile dysfunction, but reported no other genitourinary concerns. A September 9, 2009 VA treatment record indicated that the Veteran denied urinary symptoms including discharge, hesitancy, sensation of incomplete void, slow stream, and urgency. A February 23, 2010 VA treatment record indicated that the Veteran denied urinary symptoms including nocturia, hesitancy, frequency, and discharge. An August 2010 VA diabetes and associated complications examination report noted that the Veteran denied experiencing urinary incontinence. An October 15, 2010 VA treatment record noted that the Veteran denied any urinary symptoms, including hesitancy, urgency, and dribbling. SSA records were received in May 2013. On a September 26, 2005 function report the Veteran stated that he woke up approximately every 90 minutes to go to the bathroom. He also reported that he used the bathroom every 45-90 minutes during the day. A November 23, 2005 report from Dr. R. R. noted that the Veteran reported moderate polyuria and urinary frequency. On a May 26, 2006 function report, the Veteran indicated that he woke up 5-7 times per night to use the bathroom. On an undated disability report the Veteran indicated that he experienced urinary urgency and frequency that required him to use the bathroom every 15-20 minutes. The Veteran was provided a VA general medical examination in June 2013. The examiner noted that the examination took approximately 90 minutes and that the Veteran did not require any restroom breaks during that time. The examiner noted that the Veteran was service-connected for urinary frequency secondary to diabetes. With regard to his urinary symptoms, the Veteran reported that frequency continued to be an ongoing problem and that his daytime voiding interval was once every 90-120 minutes and his night voiding interval was once every 60-90 minutes. The Veteran estimated that he awoke 4-5 times per night to urinate. He endorsed urgency "a couple times a day," but denied any incomplete emptying, symptoms of obstructed voiding, incontinence, and the need for absorbency pads, absorbency material, an appliance, or extra changes of under or outer clothing as a consequence of his condition. The Veteran indicated that he was currently not receiving any treatment for his urinary condition. He reported that his stream was strong but that he experienced decreased stream force at the end of his void. The examiner noted that the Veteran's decreased stream force at the end of his void was not a significant issue and was likely a normal consequence of voiding. The examiner opined that the Veteran's bladder condition did not affect his ability to work. The Veteran was provided a VA urinary tract examination in March 2016. The examiner confirmed the prior diagnosis of urinary frequency associated with diabetes mellitus. With regard to his symptoms, the Veteran reported that his frequency continued to be problematic. He noted that during the day he voided once every 90-120 minutes and that he experienced nocturia 5-6 times per night. He denied any obstructive urinary tract symptoms, but endorsed occasional slowed stream. When questioned regarding his slow stream, the Veteran stated that his stream was not markedly slowed. He also endorsed occasional dribbling. He denied the need for appliance or special drainage procedures when voiding, incomplete voiding, urinary tract infection, or urinary leakage. The examiner noted that the Veteran's voiding dysfunction, presumed to be his service-connected urinary frequency, did not result in urine leakage, the need for the use of an appliance, obstructed voiding, recurrent symptomatic bladder or urethral infections, fistula, neurogenic or a severely dysfunctional bladder, a bladder injury, the need for bladder surgery, or any renal dysfunction. With regard to the Veteran's symptoms, the examiner indicated that the Veteran had a slow, but not markedly slow stream, occasional dribbling, and frequency characterized by daytime voiding every 1-2 hours, and nighttime awakening to void 5 or more times. The examiner opined that the Veteran's bladder condition did not affect his ability to work. After reviewing the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal period. The Veteran's voiding dysfunction, characterized by urinary frequency, has been assigned the maximum rating available, 40 percent, for the entire period on appeal. Accordingly, in the absence of other manifestations of voiding dysfunction, such as urine leakage or obstructed voiding, a rating in excess of 40 percent is not warranted. The Board acknowledges that the Veteran has experienced urinary incontinence or dribbling and slow stream or diminished stream force. Pursuant to 38 C.F.R. § 4.115a (2016), "only the predominant area of dysfunction shall be considered for rating purposes." In the present case, urinary frequency is the Veteran's predominant genitourinary dysfunction. Even assuming arguendo that this incontinence or urinary obstruction could be characterized as his predominate area of dysfunction, the criteria for a rating in excess of 40 percent is not met. The maximum rating available for obstructive voiding is less than 30 percent. While a rating in excess of 40 percent is permitted for urine leakage, as the Veteran's urinary dribbling and incontinence does not require the need for an appliance or the use of absorbent materials changed four or more times per day, the criteria for a 60 percent rating has not been met or approximated. The Board has considered the benefit of the doubt doctrine, but finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent at any time during the period on appeal. See 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7542 (2016); Gilbert, 1 Vet. App. 49. Extraschedular Consideration Generally, evaluating a disability using the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2016). As the ratings are averages, an assigned rating may not completely account for each Veteran's individual circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2016). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the present case, the Veteran's service-connected urinary frequency has been manifested by voiding every one to two hours, awakening five or more times per night to void, intermittent slow or weakened urinary stream, and intermittent urinary incontinence or dribbling that does not require a pad, absorbent, material, or appliance. When comparing the Veteran's disability picture with the symptoms contemplated by the rating criteria, the Board finds that the Veteran's disability picture is not so unusual or exceptional as to render the assigned schedular rating inadequate. As such, the Board finds that all of the Veteran's symptoms are contemplated by the Rating Schedule and as a result referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b)(1) (2016); Thun, 22 Vet. App. 111. 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 disabilities experienced. The United States Court of Appeals for Veterans Claims, in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), subsequently held that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities. Neither scenario applies to the instant case. TDIU Consideration Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In a May 2015 statement the Veteran withdrew his appeal for a TDIU. Accordingly, the claim was dismissed in a June 2015 Board decision. The Veteran has not since raised the issue of TDIU. Accordingly, the issue of TDIU is not part and parcel of the current appeal. ORDER Entitlement to a disability rating in excess of 40 percent for urinary frequency associated with diabetes mellitus, type II, is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs