Citation Nr: 1803539 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-12 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased evaluation for chronic prostatitis, post-operative transurethral resection of the prostate, currently evaluated as 20 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). 3. Entitlement to TDIU on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from February 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that it has assumed jurisdiction of the claim for entitlement to TDIU, because such claim has been raised by the record and by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issue of entitlement to TDIU on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. As of April 22, 2015, the Veteran's prostatitis has been productive of urinary frequency that results in nighttime voiding of five or more times, and urinary leakage that requires absorbent material to be changed two to four times a day. 2. Prior to April 22, 2015, the Veteran's prostatitis did not result in the wearing of absorbent materials that needed to be changed two to four times a day; daytime voiding intervals of less than an hour or voiding five or more times a night; urinary retention that required catheterization; or urinary tract infections during the period on appeal. 3. The Veteran's service-connected disabilities include his chronic prostatitis, now evaluated as 40 percent disabling from April 22, 2015 and 20 percent prior to that date; diabetes mellitus, evaluated as 20 percent disabling from October 2010 and 10 percent prior to that date; folliculitis, evaluated as 10 percent disabling; and the residual of a scar from a right inguinal hernia repair, evaluated as zero percent disabling. The Veteran's combined evaluations were 30 percent from October 22, 2007; 40 percent from October 5, 2010; and, with consideration of the new 40 percent rating for prostatitis, 60 percent from April 22, 2015. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for chronic prostatitis, post-operative transurethral resection of the prostate, have been met from April 22, 2015; the criteria for a rating higher than 40 percent have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.115a, 4.115b, Code 7527 (2017). 2. The criteria for a rating in excess of 20 percent for chronic prostatitis, post-operative transurethral resection of the prostate, prior to April 22, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.115a, 4.115b, Code 7527 (2017). 3. The criteria for an award of a total rating based on individual unemployability due to service connected disabilities on a scheduler basis have not been met. 38 C.F.R. § 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In this case, the Veteran was provided a notification letter in a February 2010 prior to the initial adjudication of his claim. Regarding the duty to assist, the Veteran has been afforded three VA examinations of his prostatitis. Additionally, VA treatment records have been obtained. The Veteran has not identified any pertinent private treatment records and he indicated he did not wish to appear at a hearing. The Board will proceed with adjudication of his claim. Increased Rating The Veteran contends that the 20 percent evaluation assigned to his chronic prostatitis is inadequate to reflect the impairment produced by this disability. He states that the frequency he is required to void and to change absorbent materials meets the criteria for an increased rating. 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. § 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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, 58 (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. 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. § 5107(b). The record shows that entitlement to service connection for chronic prostatitis was granted in a July 2003 rating decision. A zero percent evaluation was assigned, effective from April 22, 2003. The rating was increased to 10 percent by a September 2003 rating decision, also effective from April 22, 2003. The current evaluation was assigned in an August 2005 rating decision which, after assigning a temporary total evaluation following a transurethral resection of the prostate, established a 20 percent rating from February 1, 2005. The Veteran submitted a timely notice of disagreement with this decision, and a statement of the case was issued in October 2008. However, the Veteran did not complete the appeal process by submitting a substantive appeal, and new and material evidence was not received before the end of the appeal period. The August 2005 rating decision is therefore final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.105 (a), 3.156 (b) (2017). The Veteran's current claim for an increased rating was received in February 2010. The Veteran's disability is evaluated under the rating code for prostate gland injuries, infections, hypertrophy, or postoperative residuals. This states that prostate gland injuries, infections, hypertrophy, or postoperative residuals, should be rated as either voiding dysfunction or urinary tract infections, whichever is more predominant. 38 C.F.R. § 4.115b, Code 7527. In accordance with 38 C.F.R. § 4.115a, a 10 percent rating for urinary tract infection is warranted when the disability requires long-term drug therapy, one to two hospitalizations per year and/or requires intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal function due to urinary tract infection is to be rated as renal dysfunction. Also under 38 C.F.R. § 4.115a, a voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. For urine leakage, a 20 percent rating for a voiding dysfunction is warranted for requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for requiring the use of an appliance, or wearing of absorbent materials which must be changed more than four times per day. Urinary frequency has ratings ranging from 10 to 40 percent. A 40 percent rating contemplates daytime voiding intervals of less than one hour, or; awakening to void five or more times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. A 10 percent rating contemplates daytime voiding intervals between two and three hours, or; awakening to void two times per night. Obstructed voiding has ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology, such as hesitancy, slow or weak stream, decreased force of stream, with any one or combination of the following: (1) post void residuals greater than 150 cc.; (2) uroflowmetry; markedly diminished peak flow rate, less than 10 cc/sec; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. The Board finds that the evidence supports entitlement to a 40 percent rating for chronic prostatitis as of April 22, 2015. Prior to that date, the probative competent evidence weighs against entitlement to a rating in excess of 20 percent. The Veteran was afforded a VA examination on April 22, 2015. He reported a daytime voiding interval of between one and two hours, but nighttime awakening to void five or more times. Although the daytime voiding intervals do not meet the criteria for a 40 percent rating, the nighttime voiding of five or more times does meet the criteria. A 40 percent rating is the highest available schedular rating for urinary frequency, and is assigned from April 22, 2015. 4/22/15 C&P Exam, pp. 2-4. Entitlement to a rating higher than 40 percent for urine leakage is not shown by the record. On the April 22, 2015 examination, the Veteran indicated that the required absorbent material that had to be changed two to four times a day. This meets the criteria for a 40 percent rating, but the Veteran did not report changing absorbent material more than four times a day that would warrant a 60 percent rating. The rating criteria for obstructed voiding and for urinary tract infection do not provide for a rating higher than 30 percent. The 40 percent rating based on urinary leakage is the highest that may be assigned for the period beginning April 22, 2015. Indeed, the competent evidence does not show renal dysfunction. See id. at 2; 38 C.F.R. §§ 4.115a, 4.115b, Code 7527. Additionally, the Board finds that the competent evidence dated prior to April 22, 2015 does not support a rating higher than the 20 percent that was assigned. The Veteran was afforded two VA examinations during this period. At a June 2010 VA examination, the Veteran reported an attack of prostatitis about every six months. These required bed rest and antibiotics. There had been one instance of urinary tract infection in the previous year that did not require hospitalization or drainage. He reported a history of obstructed voiding, but catheterization had never been required. The Veteran reported some leakage, but wearing of absorbent material was not required. He reported voiding every one to two hours, and three times a night. None of these symptoms meet the requirements for a rating in excess of 20 percent under the criteria for either voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infection. 6/1/10 VA Examination, p. 1. Similarly, on a June 2013 VA examination, the Veteran indicated once again that he had to void every one to two hours during the day, and three to four times at night. He would experience episodes of urge incontinence a couple of times a week, and he would wear adult diapers as needed. He did not require the use of an appliance, and he did not have a recent history of recurrent symptomatic urinary tract infections. 2/21/14 VA Examination, p. 3. These symptoms fail to meet the requirements for a rating higher than 20 percent under the criteria for voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infection. 38 C.F.R. §§ 4.115a, 4.115b, Code 7527. Finally, the Board has reviewed the Veteran's VA treatment records for the period prior to April 22, 2015. At no time do these records demonstrate the wearing of absorbent materials that needed to be changed two to four times a day; daytime voiding intervals of less than an hour or voiding five or more times a night; urinary retention that required catheterization; or urinary tract infections. Based on the foregoing, the Board finds that there is no factual basis for a rating higher than 20 percent for the Veteran's prostatitis prior to April 22, 2015. 38 C.F.R. §§ 4.115a, 4.115b, Code 7527. As such, the preponderance of the evidence is against a higher rating for this period. TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining or maintaining gainful employment. He states that he had to retire early due to his disabilities, and that he has been unable to retain full time work since that time. In addition, the June 2010 VA examination states that his chronic prostatitis results in significant occupational effects. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The record shows that Veteran's service-connected disabilities include his chronic prostatitis, now evaluated as 40 percent disabling from April 22, 2015 and 20 percent prior to that date; diabetes mellitus, evaluated as 20 percent disabling from October 2010 and 10 percent prior to that date; folliculitis, evaluated as 10 percent disabling; and the residual of a scar from a right inguinal hernia repair, evaluated as zero percent disabling. The Veteran's combined evaluations were 30 percent from October 22, 2007; 40 percent from October 5, 2010; and, with consideration of the new 40 percent rating for prostatitis, 60 percent from April 22, 2015. See 38 C.F.R. § 4.25 (2017). As can be seen, the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a) were not met at any point during the Veteran's appeal. This precludes an award of TDIU on a schedular basis. Entitlement to TDIU on an extraschedular basis will be addressed in the remand section at the end of this decision. ORDER A 40 percent evaluation for chronic prostatitis, post-operative transurethral resection of the prostate, from April 22, 2015 is granted. A rating in excess of 20 percent for chronic prostatitis, post-operative transurethral resection of the prostate, prior to April 22, 2015 is denied. TDIU due to service connected disabilities on a scheduler basis is denied. REMAND As noted, the Veteran does not meet the scheduler requirement for TDIU. The June 2010 VA examination states that the Veteran's prostatitis has significant occupational effects. These include decreased concentration, lack of stamina, weakness or fatigue, decreased strength, and pain. The examiner states that the Veteran has fatigue from chronic prostatitis that would make full time work very difficult. 6/1/10 VA Examination, pp. 7, 8. In addition, the Veteran submitted a letter from his former work supervisor, who states that he observed the Veteran's physical problems, which eventually caused him to retire from his job. The supervisor appears to refer to the Veteran's prostate surgery and adds that he became worse after the procedure. 8/21/13 Buddy/Lay Statement, p. 1. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. All cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the scheduler criteria must be forwarded to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b) (2017). The Board is unable to grant TDIU on an extraschedular basis in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) ("[W]e hold today that we cannot order the Board to award TDIU under § 4.16(b), which, unlike § 3.321(b), provides that the claim should be submitted to the C&P Director, because the Board has no power to do so in the first instance."); see also Wages v. McDonald, 27 Vet. App. 233, 236 (2015) ("Although the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU, we find no merit in the Secretary's contention that the Board is limited to ensuring that the Director had the correct and full facts when rendering his decision, or that the Board otherwise is bound by the Director's decision."). Accordingly, the case is REMANDED for the following actions: 1. After completing any additional development deemed necessary, forward the Veteran's claim for TDIU to the Director, Compensation Service, for extraschedular consideration under § 4.16(b). 2. Afterwards, if any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs