Citation Nr: 1801796	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  16-23 664	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an increased rating for obstructive uropathy due to ureteral stricture, currently evaluated as 30 percent disabling.


ATTORNEY FOR THE BOARD

T. Davis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1954 to March 1956. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The rating decision, in pertinent part, increased a noncompensable (zero percent) rating for nonspecific urethritis to a 30 percent rating for obstructive uropathy due to urethral stricture, effective April 22, 2015.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's obstructive uropathy due to urethral stricture is productive of obstructive voiding requiring intermittent or continuous catheterization, no use of an appliance required to treat urine leakage or absorbent materials, and daytime voiding intervals of between two three hours and voiding three to four times a night.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent obstructive uropathy due to ureteral stricture have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7 , 4.10, 4.21, 4.115a, 4.115b, Code 7518 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to notify and Assist

The Veteran has raised any issues with the VA's 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 a duty to assist argument).

The Veteran asserts that he is entitled to a higher rating for his obstructive uropathy due to ureteral stricture. Specifically, he argues the frequency he visits the urologist (every 4 weeks), for dilatation with 3 metal rods and a urinary catheter insertions warrants a 40 percent evaluation.  See May 2016 SOC and October 2015 NOD.

Applicable Law and Analysis

The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10 . 

If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 , the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b). 

The record shows that the Veteran was diagnosed with non-specific urethritis while serving in Korea in May 1955. Service connection was initially granted for this disability in a May 1956 rating decision, and a noncompensable (zero percent) rating was assigned.  The current claim for increase was received on April  22, 2015.  In a September 2015 rating decision, the RO increased the Veteran's disability rating from 0 to 30 percent, effective from the date of the increased rating claim.  The Veteran initiated the current appeal by submitting a notice of disagreement with the assigned 30 percent rating. 

The Veteran's disability is evaluated under the rating criteria for stricture of the urethra. This disability is to be rated as a voiding dysfunction. 38 C.F.R. § 4.115b, Code 7518. 

Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. 38 C.F.R. § 4.115a.

For urinary frequency, a 10 percent evaluation 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 warrants. A 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night. Id.
Obstructed voiding includes ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post- void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id.

The evidence includes private treatment reports from 1990 to 2015. These records contain a letter from Dr. L. G. indicating that he has been treating the Veteran for the last 26 years for his urethral problems and that the Veteran comes to his office every 4 weeks for a urethral dilatation and catheterization.  

The Veteran was afforded another VA urology examination in September 2015. The examiner found that the Veteran has obstructive uropathy due to urethral stricture. The Veteran had urine leakage but not of such severity that required him to wear absorbent material.  When asked whether the Veteran's voiding dysfunction required the use of an appliance, the examiner stated "yes."  When asked to describe the appliance, the examiner stated that the Veteran requires self-cathterization 2 to 3 times per week, and ultrasonic urethral dilatation one time per month.  Significantly, the Veteran's need for catheterization and dilatation was later identified by the examiner to be due to stricture and urinary retention problems, as opposed to urinary leakage problems.  Indeed, the examiner noted the Veteran had signs and symptoms of obstructed voiding, to include stricture disease requiring periodic dilatation, recurrent urinary tract infections secondary to obstruction, post void residuals greater than 150 cc, and urinary retention requiring intermittent catheterization.  

The Veteran's daytime voiding was between every two to three hours, and he would awaken to void three to four times a night.

The evidence does not support entitlement to a rating of more than 30 percent for obstructive uropathy due to urethral stricture for any portion of the appeal period. Indeed, the Veteran's predominant urethral disability is voiding obstruction, for which he is currently in receipt of a 30 percent disability rating, the highest rating possible under 38 C.F.R. § 4.115a for voiding dysfunction based on obstructive voiding (urinary retention requiring intermittent or continuous catheterization.)  

The Veteran has not reported urinary leakage and does not use absorbent materials.  Thus a 40 percent rating for voiding dysfunction based on urinary leakage is not warranted.  

The Board recognizes that the term "appliance," as used in the criteria for voiding dysfunction under 38 C.F.R 4.115a, includes all types of catheters, as well as any other assistive device for urination.  M21-1 VA Adjudication Procedure Manual, Part III, Subpart iv, Chapter 4, Section 1.3.u.  The M21 also points out that "appliances, including catheters, may be used to treat urine leakage and/or urine retention.  The rating activity should review the evidence carefully to determine whether the appliance is required to treat urine leakage or urine retention and evaluate on the predominant disability."  Id.  

In this case, although the VA examiner noted that the Veteran does in fact use an appliance (described as a need for catheterization and dilatation), a review of the examiner's entire report shows that that catheterization and dilatation is required to treat urinary retention and stricture disease, rather than urinary leakage.  Thus, the fact that the Veteran requires use of an appliance in this case does not in and of itself warrant the assignment of a 60 percent rating for voiding dysfunction based on urinary leakage.  

The Veteran also does not report having a daytime voiding interval less than one hour or awakening to void five or more times per night.  As such a higher rating of 40 percent is not warranted for voiding dysfunction based on urinary frequency.  

As the Veteran does not meet the criteria for a rating higher than 30 percent for a voiding dysfunction due to urinary leakage, urinary frequency, or obstructed voiding, an increased rating is not warranted.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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

Entitlement to an increased rating greater than 30 percent for obstructive uropathy due to urethral stricture, is denied.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs