Citation Nr: 1753092 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-30 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to an initial disability rating in excess of 20 percent for urinary frequency, status post radical prostatectomy and external beam radiation treatment. 3. Entitlement to a compensable initial disability rating for erectile dysfunction. 4. Entitlement to a higher level of special monthly compensation (SMC) based on loss of use of a creative organ. ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from March 1968 to January 1970, including in the Republic of Vietnam. The Veteran died in August 2011 and the substituted appellant is his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) from September 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. These matters were previously remanded by the Board in January 2015 for additional development, to include obtaining identified private treatment records and relevant VA treatment records. Thereafter, additional VA treatment records were added to the claims file, and the appellant reported in December 2015 and again in March 2017 that the private records identified in the Board remand are unavailable as the providers did not maintain the old records. As such, the Board finds that the previously requested development has been completed to the extent possible and the matters are properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999). Although the Veteran initially filed a claim of entitlement to service connection for PTSD, based upon the evidence of record, the Board has characterized the appellant's claim as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. The Veteran was never diagnosed with PTSD, and his major depression was not etiologically related to active service. 2. For the entire period on appeal, the Veteran's urinary frequency, status post radical prostatectomy and external beam radiation treatment, did not require the use of an appliance or the wearing of absorbent materials which must be changed 2 or more times per day, a daytime voiding interval of less than one hour, or; awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. 3. For the entire period on appeal, the Veteran's erectile dysfunction was not manifested by deformity of the penis with loss of erectile power. 4. The Veteran's award of special monthly compensation (SMC) was based on his service-connected erectile dysfunction, or loss of use of a creative organ, and he does not any additional service-connected conditions which warrant an additional award of SMC. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). 2. The criteria for an initial disability rating in excess of 20 percent for urinary frequency, status post radical prostatectomy and external beam radiation treatment, have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, DC 7527 (2017). 3. The criteria for a compensable initial disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115b, DC 7522 (2017). 4. The criteria for a higher level of SMC based on loss of use of a creative organ have not been met. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection - PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Specifically, service connection for PTSD requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2017). For the purposes of establishing service connection, medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125(a) (2017), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) as the source of criteria for the diagnosis of claimed psychiatric disorders. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the appellant's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. Service treatment records are negative for any complaints, treatment, or diagnoses of any psychiatric disorder. The January 1970 separation found no psychiatric abnormalities, and the Veteran did not report any psychiatric problems. Significantly, the evidence of record does not document that the Veteran was diagnosed with PTSD in accordance with the DSM for any period on appeal. Post-service private treatment records from March 2008, October 2008, and July 2009 document treatment for a mood disorder or depression; however, there is no probative evidence relating such conditions to the Veteran's active service. Upon VA examination in December 2009, the VA examiner concluded, based upon a thorough psychiatric examination and consideration of the Veteran's reported history, that he did not meet DSM criteria for PTSD. The examiner ultimately diagnosed major depression, that was unrelated to the Veteran's military service; rather, the examiner noted related problems including a history of alcohol dependence and polysubstance abuse (unrelated to military service), health problems, and familial and marital stressors. The Board assigns high probative weight to this opinion as it was based on an examination of the Veteran and supported by rationale. Further, there is no competent contrary medical opinion of record. To the extent that the appellant asserts that the Veteran had PTSD or that any psychiatric disorder he had was related to service, such statements are of no probative value given the appellant's lack of psychiatric training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the evidence above, the preponderance of evidence weighs against the appellant's claim of entitlement to service-connection for an acquired psychiatric disorder, to include PTSD and depression. As such, there is no reasonable doubt to be resolved and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Initial Disability Ratings - Generally Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2017). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Regarding the initial rating claims on appeal, the Board has considered them from the assigned effective dates, which the appellant has not appealed, including whether any staged rating periods are warranted. A. Initial Rating - Urinary Frequency/Prostate Residuals The Veteran's service-connected urinary frequency, status post radical prostatectomy and external beam radiation treatment, is rated as 20 percent disabling from March 31, 2009 under DC 7528, regarding malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, DC 7528 (2017). Thereunder, when there has been no local reoccurrence or metastasis, residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. See id.; see also 38 C.F.R. § 4.115a (2017). The Board initially notes that the evidence of record does not document renal dysfunction related to the Veteran's status post radical prostatectomy and external beam radiation treatment; therefore, his condition is considered under the rating criteria for voiding dysfunction. Id. Under the rating criteria for voiding dysfunction, the particular condition is to be rated as urine leakage, frequency, or obstructed voiding. Id. Regarding urine leakage (including continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 20 percent disability rating is warranted for a condition which requires the wearing of absorbent materials which must be changed less than 2 times per day. Id. A 40 percent disability rating is warranted for a condition which requires the wearing of absorbent materials which must be changed 2 to 4 times per day. Id. Finally, a maximum schedular 60 percent disability rating is warranted for a condition which requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. Regarding urinary frequency, a 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. Id. A maximum schedular 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. Id. Regarding obstructed voiding, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. Id. Upon VA examination in September 2009, the Veteran reported symptoms of urinary frequency with a daytime voiding interval of two hours and nocturia three times per night. However, there was no reported incontinence, recurrent urinary tract infections, or obstructive voiding requiring dilation. To the extent that a June 2010 statement from a private physician reports that the Veteran's symptoms of voiding dysfunction required the use of an appliance or absorbent padding that must be changed more than 4 times per day, the Board finds that such reports are notably inconsistent with the additional evidence of record; therefore, the June 2010 private physician's statement is less probative and does not warrant an increased disability rating. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Notably, November 2008 treatment records from the same private physician document that the Veteran had no voiding complaints. Moreover, a June 2010 treatment record just ten days prior to the physician's above statement documents the Veteran's report of nocturia twice per night with the use of a pad once per day. Additionally, a January 2011 treatment record documents no voiding problems with a complaint of nocturia. The Board has also considered the appellant's lay statements, including her September 2012 VA Form 9 that reported the Veteran's use of adult incontinence pads that he changed at least twice daily. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as such reports are inconsistent with the additional evidence of record, they are afforded little probative value. See Caluza, 7 Vet. App. 498. As such, based upon a review of the evidence of record, the Board finds that the preponderance of the evidence weighs against the appellant's claim of entitlement to an initial disability rating in excess of 20 percent for the Veteran's urinary frequency, status post radical prostatectomy and external beam radiation treatment for the entire period on appeal. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert, 1 Vet. App. 49. B. Initial Rating - Erectile Dysfunction The Veteran's erectile dysfunction is rated as noncompensable from March 31, 2009 under DC 7522. 38 C.F.R. § 4.115b, DC 7522 (2017). Thereunder, penis deformity, with loss of erectile power, warrants a 20 percent disability rating. Id. Notably, the requirement under DC 7522 of deformity of the penis with loss of erectile power clearly means that both factors are required for a compensable 20 percent disability rating. See 38 C.F.R. § 4.31; see also Melson v. Derwinski, 1 Vet. App. 334 (1991). Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the appellant's claim of entitlement to a compensable disability rating for the Veteran's erectile dysfunction for the entire period on appeal. The Board acknowledges that private treatment records prior to the appeal period beginning March 31, 2009 document some penile curvature consistent with Peyronie's disease in April 2004. However, subsequent treatment records do not document consistent findings of deformity; rather, upon VA examination in September 2009, a physical examination of the genitalia was normal. Additionally, private treatment records from February 2012 document that the Veteran was able to maintain partial erections. The Board has considered the lay statements of the appellant, including within her September 2012 VA Form 9 substantive appeal, which are probative insofar as they report observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the appellant's reports regarding the Veteran's penile deformity and complete lack of erections after his prostate surgery conflict with the additional evidence of record, they are afforded little probative value in the context of her appeal. See Caluza v. Brown, 7 Vet. App. 498 (1995). Given the above, the preponderance of the evidence weighs against the appellant's claim of entitlement to an initial disability rating in excess of 20 percent for the Veteran's urinary frequency, status post radical prostatectomy and external beam radiation treatment, for the entire period on appeal. As the preponderance of evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. IV. Special Monthly Compensation (SMC) VA regulations allow for payment of special monthly compensation (SMC) based on certain losses or losses of use which is payable in addition to statutory evaluations. See 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350 (2017). In this case, the Veteran has already been awarded SMC based upon his service-connected erectile dysfunction, which is considered loss of use of a creative organ. However, the evidence of record does not show that the Veteran suffered from any other service-connected losses or losses of use which would have qualified him for a higher level of SMC. In other words, the Veteran's service-connected erectile dysfunction was the sole basis for an award of SMC. Hence, there is no factual or legal basis for award of SMC beyond Level K. Id. As such, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depression, is denied. An initial disability rating in excess of 20 percent for urinary frequency, status post radical prostatectomy and external beam radiation treatment, is denied. A compensable initial disability rating for erectile dysfunction is denied. A higher level of SMC based on loss of use of a creative organ is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs