Citation Nr: 1753988 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-20 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for prostate cancer, status post robotic radical prostatectomy, currently evaluated as 20 percent disabling, to include the issue of whether the reduction in disability rating from 100 percent to 20 percent effective May 1, 2013, was proper. 2. Entitlement to an initial compensable rating for Peyronie's disease with erectile dysfunction, and in excess of 20 percent disabling from December 16, 2016. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which reduced the disability rating for prostate cancer, status post robotic radical prostatectomy, from 100 percent to 20 percent, effective May 1, 2013. The February 2013 rating decision also separately granted service connection for erectile dysfunction and assigned a noncompensable rating, effective August 13, 2008. (It had previously been characterized as a component of his prostate cancer which had been service connected effective in August 2008. Likewise, the Veteran was awarded special monthly compensation at that time [2008] for loss of use of a creative organ.) The Veteran appeared at a March 2016 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a June 2016 decision, the Board denied entitlement to an initial compensability disability rating for the Veteran's erectile dysfunction (ED) and remanded the remaining prostate cancer-related issues. With respect to the remanded issues, the Board finds that there has been substantial compliance with the directives of this latest Remand decision, including the procurement of updated medical treatment records and new VA examinations and opinions regarding the severity of the Veteran's prostate cancer residuals. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Following the denial of entitlement to an increased rating for ED, the Veteran sought reconsideration of the decision, but the motion was denied by the Board in December 2016. See December 2016 Board Motion for Reconsideration Ruling. Thereafter, the Veteran filed a claim for entitlement to service connection for Peyronie's disease, which the RO addressed in April 2017 by re-characterizing the Veteran's ED as Peyronie's disease, and assigned a non-compensable rating from August 2008, with a 20 percent rating from December 2016 While this was taking place with the RO, the Veteran was pursuing an appeal of the Board's June 2016 decision that denied a compensable evaluation for ED with the United States Court of Appeals for Veterans Claims (CAVC). In August 2017, the Court issued a Joint Motion for Remand (JMR) that vacated the Board's June 2016 decision in-part, not wishing to disturb the Board's remand for additional development of the prostate cancer issues, and remanded the ED claim for further proceedings. The Order contained no discussion of the April 2017 award of maximum schedular benefit for the disability. FINDINGS OF FACT 1. For the entire period on appeal, the service-connected residuals of prostate cancer were manifested by use of absorbent materials changed less than two times a day and voiding dysfunction of a daytime interval of 2 to 3 hours and awaking at night 2 times; the Veteran's cancer has been in remission for the entire period on appeal, and he was not undergoing any therapeutic procedure, nor did he present with any renal dysfunction. 2. From November 1, 2012, the Veteran's Peyronie's disease with erectile dysfunction presented with objective findings of deformity of the penis associated with the service-connected disability. 3. The Veteran is already in receipt of the maximum level of SMC for loss of use of a creative organ. CONCLUSIONS OF LAW 1. From May 1, 2013, the criteria for the assignment of an evaluation in excess of 20 percent disabling for residuals of prostate cancer, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2017). 2. From November 1, 2012, the criteria for a 20 percent rating, but not higher, for Peyronie's disease with penile deformity and erectile dysfunction have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.115a, b, DC 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings The Veteran is seeking increased ratings for his service connected prostate cancer, status post robotic radical prostatectomy (prostate cancer residuals), to include whether the May 1, 2013 rating reduction from 100 percent to 20 percent disabling was proper, and for his service-connected Peyronie's disease with erectile dysfunction (previously rated as erectile dysfunction), currently rated as 20 percent disabling from December 16, 2016. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21Vet. App. 506 (2007). Prostate Cancer residuals The Veteran seeks restoration of his prior total evaluation for his service connected prostate cancer residuals, or in the alternative an evaluation in excess of the current 20 percent. The Veteran's service-connected residuals of prostate cancer are rated under Diagnostic Code 7527. If there has been no local reoccurrence or metastasis following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, then the disability is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7527. From May 1, 2013, the Veteran's prostate cancer residuals are rated as 20 percent disabling under the provisions of 38 C.F.R. § 4.115 (b), DC 7527, which provides the criteria for prostate gland injuries, infections, hypertrophy, and postoperative residuals of the prostate gland. Such disability is to be rated under either voiding dysfunction or urinary tract infection, whichever is dominant. 38 C.F.R. § 4.115 (b), DC 7527 (2016). Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. A 20 percent rating is warranted when there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, such that the Veteran is required to wear absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted when the Veteran is required to wear absorbent materials that must be changed two to four times per day. A 60 percent disability rating is warranted with the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. 38 C.F.R. § 4.115 (a). With respect to urinary tract infections, a 10 percent rating is warranted when the infection requires long-term drug therapy with one to two hospitalizations per year and/or requiring intensive management. A 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater, than two times a year), and/or requiring continuous intensive management. Otherwise, rate as renal dysfunction. With regard to urinary frequency, a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating. Daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating, and daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. Finally, a rating of 30 percent is warranted for obstructed voiding resulting in urinary retention requiring intermittent or continuous catheterization. For renal dysfunction, a noncompensable rating is warranted for albumin and casts with history of acute nephritis; or hypertension non-compensable under diagnostic code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A maximum rating of 100 percent is warranted where renal dysfunction requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Facts & Analysis In this case, there is no evidence or assertion of a recurrence of the Veteran's prostate cancer. In this regard, the Board notes that DC 7527 makes it clear that residuals alone cannot serve as a basis for continuation or restoration of a 100 percent evaluation for prostate cancer. 38 C.F.R. § 4.115b. The medical evidence and the Veteran's own contentions show that the predominant residual of his prostate cancer is voiding dysfunction, specifically urinary frequency and the use of absorbent materials. Taking into account all relevant evidence, the Board finds that the criteria for restoration of the Veteran's 100 percent award or for an evaluation in excess of 20 percent disabling for the Veteran's service connected residuals of prostate cancer have not been met for the entire period on appeal. The Veteran was assigned a 20 percent rating for residuals of prostate cancer for the period following May 1, 2013. The Board has thoroughly reviewed the entire claims files. The Veteran was afforded a VA examination in March 2012 where the examiner noted a 2008 prostate cancer diagnosis that was currently in remission. The Veteran reported use of absorbent materials changed less than two times a day without any daytime or nighttime voiding frequency issues. Diagnostic testing revealed a "high" level of CBC-Hemoglobin at 17.3, and urinalysis and PSA were found to be within normal limits. At his March 2016 Board hearing, the Veteran testified as to changing absorbent pads "twice a day" and urinary frequency of five times nightly. In a June 2016 VA examination, the Veteran's prostate cancer was noted to be in remission. The Veteran reported use of absorbent materials changed less than two times a day. Voiding dysfunction was identified as requiring a daytime interval of 2 to 3 hours and awaking at night 2 times. No urinary tract or kidney issues were noted, but erectile dysfunction was identified. Diagnostic testing revealed a PSA of 0.01 ng/ml 0-4. In view of the above, the Board will not increase the rating on appeal. The Board finds the totality of the evidence, including the Veteran's statements and VA and private medical opinions, is accurately reflected by the current 20 percent rating, to include the decrease of the prior 100 percent evaluation, as called for in the rating criteria. Regarding the propriety of the reduction of the 100 percent disability rating, as noted above, at no time during the period on appeal does the evidence of record reflect that the Veteran's prostate cancer was being actively treated as the medical evidence conclusively demonstrates it was in remission. Therefore, the Board must rely upon residual voiding and renal symptomatology for a potential increased disability rating. Regarding voiding dysfunction, the use of absorbent materials needed to reach a higher rating threshold was not identified at either VA examination, a fact concurred by the Veteran during his Board hearing. Likewise, the Veteran's report of voiding 5 times per night at his Board hearing was reduced to only 2 times per night when discussed with medical personnel, shortly after the hearing. Given the context of the reports, it is reasonable to find the number provided to a medical professional to be more accurate. Regarding renal deficiency, neither VA examination upon diagnostic testing or otherwise revealed any renal deficiency, nor has the Veteran testified to such. In light of the above, the Board finds that a higher schedular evaluation for the service-connected residuals of prostate cancer, is not assignable in this case and the reduction from 100 percent to 20 percent from May 1, 2013 was proper. Peyronie's disease with Erectile Dysfunction The Veteran was service-connected for prostate cancer (previously characterized as prostate cancer with erectile dysfunction) in a February 2009 rating decision. The February 2009 rating decision also awarded special monthly compensation (SMC) based on loss of a creative organ from August 13, 2008. In the February 2013 rating decision, the RO granted a separate rating for erectile dysfunction as secondary to the Veteran's prostate cancer, effective August 13, 2008 and assigned a noncompensable rating. As noted above, in an April 2017 rating decision, the RO recharacterized the Veteran's separate rating as Peyronie's disease with erectile dysfunction and penile deformity and increased the evaluation to the maximum schedular benefit of 20 percent disabling, effective December 16, 2016. Facts & Analysis The RO has evaluated the Peyronie's disease with ED as comparable to 38 C.F.R. § 4.115b, Diagnostic Code 7522. That diagnostic code provides for a 20 percent rating for deformity of the penis with loss of erectile power. That code also refers the issue for consideration of entitlement to special monthly compensation (SMC). The RO has granted the Veteran SMC on account of loss of use of a creative organ. Diagnostic Code 7522 provides only for a 20 percent rating, and not for any higher ratings. The rating schedule provides for a rating higher than 20 percent for a disorder of the penis only if there is removal of half or more of the penis. See 38 C.F.R. § 4.115b, DC 7520 (2016). As an initial matter, the Board finds that the evidence does not show, including the multiple self-images of the Veteran's anatomy in question in a turgid state, nor any testimony or contention to the effect that there is a missing portion of the service-connected genitalia. Thus, the Board finds that the maximum evaluation of 20 percent disabling for the disability is appropriate, and the foregoing discussion will focus whether a compensable rating is warranted for the period prior to December 16, 2016. As discussed above, the RO has separately awarded the maximum rating for SMC based upon loss of use of a creative organ under 38 U.S.C.A. § 1114 (k). This compensation contemplates impotence, and may be awarded even if the Veteran can achieve erection and penetration with the use of medication. See Veterans Benefits Administration (VBA) Adjudication Manual M21-1, Part III.iv.4.I.2.b (Entitlement to SMC Associated With Erectile Dysfunction). A separate rating under Diagnostic Code 7522 may only be awarded deformity of the penis with loss of erectile power. See M21-1, Part III.iv.4.I.3.a (Deformity of the Penis With Loss of Erectile Power). However, VBA has indicated that a compensable rating under Diagnostic Code 7522 is not warranted in the absence of deformity, and instructs that such deformity be "evident." VA treatment records dating from June 2009 through April 2013 reflect a diagnosis of "[m]ale erectile disorder" but do not otherwise contain findings relevant to the Veteran's erectile dysfunction. The February 2012 DBQ examination report reflects a diagnosis of erectile dysfunction from 2008. The examiner found that the Veteran's erectile dysfunction was attributable to prostate cancer, to include treatment or residuals of prostate cancer. The examiner noted that the Veteran was able to achieve an erection sufficient for penetration and ejaculation with medication. The examiner indicated that there were no other pertinent physical findings or symptoms were found. No finding of deformity was noted at the time. The record evidence includes two medical opinions from the Veteran's private treating physician Dr. Yoshida. In his April 2017 correspondence, Dr. Yoshida provided a brief medical history of the Veteran's prostate cancer and subsequent symptomatology. Following prostate surgery in September 2008, the Veteran was "subsequently diagnosed with Peyronie's disease in 2013," noting associated symptoms of penile deformity, reduction in length, some calcification, and difficulty with overall function. The physician opined that the Veteran's current genital symptomatology was "likely related to his surgery and/or the injection therapy prescribed to treat his erectile dysfunction." As noted above, the Veteran underwent a VA prostate cancer examination in June 2016 which noted a diagnosis of erectile dysfunction. The examiner commented on the November 2012 photographs which were proffered by the Veteran, noting that they demonstrated "abnormal curvature of his penis when in an erected state consistent with Peyronie's disease." Prior to 2013, the evidence of record, including medical documentation and the Veteran's statements and testimony, identifies penile symptomatology solely focused on the extent and severity of his inability to obtain and maintain an erection without the aid of medication, rather than any alleged deformity to include Peyronie's disease. See i.e. November 2008 Dr. Tamiry Internal Medicine Evaluation ("he has had problems with erections since surgery...the genital examination was unremarkable"); July 2012Veteran correspondence. Thereafter, beginning in December 2012 with his submission of nude self-images allegedly depicting his malformed erection, the medical evidence, and testimony indicates that the Veteran was suffering from penile deformity associated with his Peyronie's disease. While the Veteran's private physician identified a "2013" onset of the Peyronie's disease with deformed genital symptomatology, the Board will give the benefit of the doubt to the Veteran and find that a 20 percent rating is warranted from November 1, 2012, the date of the photography as identified by the June 2016 VA examiner. DC 7522. With regard to the Veteran's claims of inability to obtain and maintain an erection, with or without medication, such is an aspect already compensated by the SMC award for loss of use of a creative organ. As noted, the Veteran has been awarded VA compensation for impotence regardless of whether his impotence is complete or whether medications or implantations allow some form of erection and penetration. As such, any further compensation for erectile dysfunction alone, regardless of the severity, would constitute pyramiding prohibited under 38 C.F.R. § 4.14 . The Veteran does not contend, and the record does not reflect, that the Veteran is entitled to a compensable rating under other diagnostic codes for his erectile dysfunction. See generally 38 C.F.R. § 4.115b , Ratings of the Genitourinary System, Diagnostic Codes 7500-42. In conclusion, the preponderance of the evidence in this case warrants a finding of an increased rating for the Veteran's Peyronie's disease with erectile dysfunction and penile deformity from November 1, 2012, but no earlier. See 38 U.S.C.A. § 5107 (b). Other Considerations Lastly, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with regard to the above claims of increased ratings. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." ORDER The reduction of prostate cancer, status post robotic radical prostatectomy disability rating from 100 percent to 20 percent effective May 1, 2013, was proper. Entitlement to an increased rating in excess of 20 percent disabling for prostate cancer, status post robotic radical prostatectomy, is denied. Subject to the law and regulations governing the payment of monetary benefits, entitlement to a 20 percent rating, but no higher, for Peyronie's disease with erectile dysfunction from November 1, 2012, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs