Citation Nr: 1751565 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-34 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable rating for pelvic scar. 2. Entitlement to an initial rating in excess of 40 percent for prostate cancer in remission, status post radical prostatectomy surgery. 3. Entitlement to an initial compensable rating for erectile dysfunction. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for all three issues on the title page and assigned noncompensable ratings effective December 6, 2013. The Veteran's notice of disagreement only addressed the scar and prostate cancer, but the September 2015 statement of the case included all three issues. Thereafter, a September 2015 substantive appeal was submitted in which the Veteran indicated "I have read the statement of the case and any supplemental statement of the case I received. I am only appealing these issues." However, he did not expressly list which issues. He did indicate why he believed the prostate cancer residuals were decided incorrectly. In October 2015, the representative's statement (VA 646) was submitted and included all three issues. All three issues were certified to the Board later that month. Thus, the three issues identified on the title page are properly on appeal. See Evans v. Shinseki, 25 Vet. App. 7 (2011). In January 2017, the Board remanded the claims for further development, including additional VA examinations. In a September 2017 rating decision, the RO increased the rating for the prostate cancer residuals to 40 percent and awarded an earlier effective date for the grant of service connection of December 6, 2012. This matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C.A. § 7107 (a)(2). FINDINGS OF FACT 1. The Veteran has one 11 centimeter surgical scar on his pelvis that is painful; it is not unstable, and does not result in any disabling effects. 2. The Veteran's prostate cancer is in remission; the residuals are manifested by urinary frequency and voiding dysfunction which do not require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 3. The Veteran's erectile dysfunction results in impairment/loss of erectile power, without deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, and not higher, for a pelvic scar have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805 (2017). 2. The criteria for an initial rating in excess of 40 percent for prostate cancer in remission have not been met. 38 U.S.C.A. §§1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a; 4.115b, DC 7528 (2017). 3. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115b, DC 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, 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. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Pelvic Scar The Veteran contends that a compensable rating is warranted for his pelvic scar. For scars, DC 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent disability rating assigned for 5 or more scars that are unstable or painful. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Other diagnostic criteria are also available for evaluation of scars. Under DC 7801 for scars not of the head, face, or neck, that are deep and nonlinear: areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating; areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrant a 20 percent rating; areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrant a 30 percent rating; and a higher rating is warranted for scars of a larger area. Under DC 7802, scars not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. A superficial scar is one not associated with underlying soft tissue damage. Under DC 7805, scars are rated under an appropriate code in relation to other effects of the scar not considered under DCs 7800-7804. Evaluation is on the basis of any disabling effects not considered in the rating criteria provided under DC 7800 to 7804 under an appropriate diagnostic code. Following the September 2014 rating decision which granted service connection for a pelvic scar with a noncompensable rating, the Veteran submitted a February 2015 notice of disagreement. He indicated a 10 percent rating was warranted due to irritation to the scar caused by rubbing against his belt and "trousers." Similarly, the November 2016 appellate brief noted the Veteran's contention that his scar is painful. As noted, the claim came before the Board in January 2017 and was remanded for further development, including a VA examination to determine if the Veteran's scar had worsened and if it was painful. The Veteran was afforded a May 2017 VA examination in which the examiner indicated the Veteran's scar is 11 centimeters long and is painful. He indicated it is not unstable, does not cause limitation in function and does not impact his ability to work. In view of the evidence, including the Veteran's assertions, and resolving all reasonable doubt in his favor, a 10 percent rating is warranted for the pelvic scar. There is some pain noted by the Veteran and acknowledged by the May 2017 VA examiner. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.118, DC 7804. Although this higher initial rating is warranted, the evidence establishes that a rating in excess of 10 percent for the pelvic scar is not warranted at any time during the appeal period. There is only one scar noted. Further, while the Veteran is competent to report his pain symptoms, the May 2017 VA examination report notes no further disability due to the scar. No symptoms of tenderness, swelling, elevation or depression about the scar were found. Further, the examiner noted the Veteran's scar was not unstable. The Board finds that the Veteran's pelvic scar does not result in any disabling effects to warrant a rating in excess of 10 percent under another appropriate diagnostic code in accordance with DC 7805. 38 C.F.R. § 4.118, DC 7805. Therefore, an initial rating of 10 percent is warranted under DC 7804. In sum, an initial 10 percent rating is warranted for the painful pelvic scar. The preponderance of the evidence is against a rating in excess of 10 percent; there is no further doubt to be resolved as the benefit of the doubt doctrine was applied in awarding the increased rating. Prostate Cancer in Remission The Veteran's claim for residuals of prostate cancer in remission was granted in the September 2014 rating decision and he was awarded a noncompensable rating. The rating was then increased to 40 percent in the September 2017 rating decision, from December 6, 2012. Under 38 C.F.R. § 4.115b, DC 7528, malignant neoplasms of the genitourinary system are to be evaluated as 100 percent disabling. 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. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e). If there has been no local recurrence of metastasis of the neoplasm, it is to be rated based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant. Voiding dysfunction is evaluated under the rating criteria for urine leakage, urinary frequency, or obstructed voiding based on the nature of the disability in question. 38 C.F.R. § 4.115a. With regard to voiding dysfunction causing urine leakage, a 20 percent rating is assigned where there is a requirement to wear absorbent materials which must be changed less than 2 times per day. A 40 percent rating corresponds to the requirement to wear absorbent materials which must be changed 2 to 4 times per day. Pertinent here, the maximum rating of 60 percent is warranted where urine leakage requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a 20 percent rating is provided where there is evidence of daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A maximum rating of 40 percent is warranted where there is evidence of daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. Renal dysfunction manifested by albumin and casts with history of acute nephritis; or hypertension that is noncompensable under DC 7101, is to be assigned a noncompensable rating. Renal dysfunction manifested by constant albuminuria or recurring with hyaline and granular casts or red blood cells; or hypertension at least 10 percent under DC 7101, is to be assigned a 30 percent rating. Renal dysfunction manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101, is to be assigned a 60 percent rating. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 mg% to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating. 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, warrants a 100 percent rating. 38 C.F.R. § 4.115a. The Board notes renal dysfunction has not been identified a residual manifestation of the Veteran's prostate cancer by the competent medical evidence. The Veteran was afforded a July 2014 VA examination in which the examiner indicated a diagnosis of prostate cancer in remission, status post radical prostatectomy surgery. The examiner found no voiding function and no urinary tract or kidney infection. Erectile dysfunction was noted and is addressed separately below. He indicated the Veteran's rectal examination was normal and overall his prostate condition had improved. Following the September 2014 rating decision, the Veteran submitted a February 2015 notice of disagreement in which he indicated a rating higher than noncompensable is warranted due to damage done to his urinary tract. Thereafter, in the September 2015 substantive appeal, he indicated he has problems with urinating and leakage. He noted he urinates some days up to ten times per day and several times at night. He stated he also experiences daytime leakage and wears pads which he has to change 4-6 times per day, as well as 1-2 times per night. In January 2017, the Board remanded the claim to determine to severity of the disability. The Veteran was afforded a May 2017 VA examination in which the examiner diagnosed the Veteran with prostate cancer in remission, status post radical prostatectomy, erectile dysfunction and urinary incontinence/urinary frequency. Significantly, the examiner stated the Veteran does have a voiding dysfunction and requires absorbent material which must be changed 2 to 4 times per day. He indicated the voiding dysfunction does not require the use of an appliance but it does cause increased urinary frequency, including daytime voiding intervals between 1 and 2 hours and nighttime awakening to void 3 to 4 times. The examiner noted the Veteran's voiding dysfunction does not cause signs or symptoms of obstructed voiding or urinary tract/kidney infection. Erectile dysfunction was indicated, however, no functional impact was found. The Board finds that after a careful review of the evidence, no increase in the Veteran's current 40 percent rating is warranted. As noted, the Veteran's cancer has been successfully treated with no recurrence or metastasis. Thus, the condition is rated according to residuals (voiding dysfunction or renal dysfunction) as governed by 38 C.F.R. § 4.115b, DC 7528. As noted, the competent evidence of record is silent for renal dysfunction. The Veteran's residual symptoms of prostate cancer are predominantly manifested by voiding dysfunction, including urinary leakage and frequency. The July 2014 examiner found no voiding dysfunction. However, the May 2017 examiner indicated urinary incontinence and urinary frequency problems, including voiding dysfunction. He noted the voiding dysfunction requires absorbent material which must be changed 2 to 4 times per day and nighttime awakening to void 3 to 4 times per night and the condition does not cause the use of an appliance. The Board finds that the RO appropriately increased the Veteran's rating to 40 percent following the May 2017 examination and that a rating in excess of 40 percent is not warranted at any time during the appeal. The VA examinations, as well as the VA treatment records, do not document any complaints of continual urine leakage or urinary incontinence requiring the use of an appliance or wearing absorbent materials which must be changed more than four times per day, as required for a 60 percent rating based on voiding dysfunction. The Board acknowledges the severity of the Veteran's symptoms and his report in the September 2015 substantive appeal of problems with urinating and leakage. He indicated he urinates some days up to ten times per day and several times at night and suffers from daytime leakage requiring pads which he has to change 4-6 times per day. While this statement supports a 60 percent rating, subsequent to this statement the May 2017 examiner found voiding dysfunction which requires absorbent material which must be changed 2 to 4 times per day. The Veteran's statement must be weighed with all the other evidence of record, including the May 2017 VA examiner's opinion. As none of the medical evidence of record contains any objective findings of the need to change absorbent materials more than four times a day, the Board finds the preponderance of the evidence does not support a rating of 60 percent. Based on these findings, the Board concludes that an increased rating to 60 percent is not warranted for the prostate disability. In denying a higher rating in excess of 40 percent, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, there is no reasonable doubt to be resolved with respect to this issue. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Erectile Dysfunction The record reflects the Veteran underwent a prostatectomy in January 2007. The September 2014 rating decision reflects that service connection was granted for erectile dysfunction as a result of the service-connected prostatectomy. An initial noncompensable rating was assigned under DC 7522 pertaining to deformity of the penis with loss of erectile power. Erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating have not been met. 38 C.F.R. § 4.31. In order to warrant a compensable rating for erectile dysfunction there must be competent evidence of penile deformity. During the July 2014 VA examination, the examiner indicated the Veteran began having trouble with sexual intercourse due to an enlarged prostate in 1994. Erectile dysfunction was diagnosed and the examiner indicated no penis deformity. He noted no varicocele, tenderness or masses present. The Board remanded the claim in January 2017 for a VA examination to include determining if the Veteran has a penis deformity with loss of erectile power. The Veteran underwent a May 2017 VA examination in which the examiner indicated the Veteran has a normal penis. No deformity was noted and no epididymitis, epididymo-orchitis or prostatitis. Therefore, the competent objective medical evidence establishes that no penile deformity is present. No evidence of any penis removal or penis removal of glans, or testis atrophy, or removal, is present either. The evidence clearly demonstrates that the Veteran has impairment due to loss of erectile power; however, without evidence of deformity of the penis, there is no basis for the assignment of a compensable evaluation for erectile dysfunction. Therefore, the service-connected disability of erectile dysfunction does not more nearly approximate the criteria for a 20 percent rating at any time during the appeal. The Board notes that although the Veteran has been assigned a noncompensable rating for his erectile dysfunction, he has been awarded special monthly compensation from December 6, 2012 under the provisions of 38 C.F.R. § 3.350 (a) on account of loss of use of a creative organ. The preponderance of the evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. An initial compensable rating for erectile dysfunction is not warranted. There are no additional expressly or reasonably raised issues presented on the record. ORDER An initial 10 percent rating, but not higher, for a pelvic scar is granted, subject to the criteria governing monetary awards. An initial rating in excess of 40 percent for prostate cancer in remission, status post radical prostatectomy surgery, is denied. An initial compensable rating for erectile dysfunction is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs