Citation Nr: 1803552 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-03 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a compensable rating for erectile dysfunction. 2. Entitlement to an evaluation in excess of 60 percent for service connected residuals of radical prostatectomy due to prostate cancer with urinary incontinence, bladder neck contracture and pelvic floor pain (saddle anesthesia/ pudendal neuralgia). 3. Entitlement to a separate evaluation for pudendal neuralgia, associated with residuals of radical prostatectomy due to the Veteran's service-connected prostate cancer. 4. Entitlement to temporary total disability ratings following surgeries in February 2011, September 2011, and November 2012, for the purpose of convalescence. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2010 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2017. A transcript of the hearing is associated with the claims files. As explained in further detail below, the Veteran's pudental neuralgia is not properly contemplated by his current 60 percent evaluation for service-connected residuals of radical prostatectomy due to prostate cancer. Accordingly, pudental neuralgia is reclassified above as a separate issue. These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT 1. The Veteran's erectile dysfunction does not result in any deformity of the penis. 2. The Veteran is in receipt of the maximum schedular rating for voiding dysfunction associated with his prostate cancer residuals, and there is no associated renal dysfunction. 3. The Veteran's pudental neuralgia resulted from a radical prostatectomy due to his service-connected prostate cancer, and is manifested by chronic pain and discomfort. 4. The competent and probative evidence of record does not reflect that the Veteran's February 2011, September 2011, and November 2012 surgeries resulted in the medical need for at least one month of convalescence. The surgeries did not result in incompletely healed surgical wounds, stumps of recent amputations, application of a body cast, use of a wheelchair or crutches, therapeutic immobilization, immobilization by cast, or the necessity of house confinement. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115b, Diagnostic Code 7522 (2017). 2. The criteria for a rating in excess of 60 percent for residuals of radical prostatectomy due to prostate cancer with urinary incontinence, and bladder neck contracture are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105(e), 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 3. The criteria for a separate 10 percent disability rating, but no higher, for pudendal neuralgia, associated with the Veteran's service-connected residuals of radical prostatectomy due to prostate cancer, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8799-8730 (2017). 4. The criteria for the assignment of temporary total ratings based on need for a period of convalescence following February 2011, September 2011, and November 2012 surgeries have not been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the Veteran 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). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Increased Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform evaluations of the disabilities on appeal are warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. A. Erectile Dysfunction Service connection has been established for erectile dysfunction. The RO evaluated the Veteran's erectile dysfunction as 0 percent (noncompensable) disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7522. Pursuant to Diagnostic Code 7522, a 20 percent disability rating is assigned for deformity of the penis, with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The evidence of record does not demonstrate that the Veteran has a deformity of the penis. The report of a December 2009 VA examination includes a diagnosis of total, complete, and permanent erectile failure, secondary to radical prostatectomy due to the Veteran's service-connected prostate cancer. Upon physical examination, no penile deformity was found. September 2011 private treatment records reflect that the Veteran underwent a complete three chamber penile implant procedure to help remedy his erectile dysfunction. No deformities were noted. No deformities were noted during a September 2013 VA urology examination. During an August 2014 VA examination, the Veteran reported being impotent, and could not achieve and maintain and erection. No deformity was reported. The examiner noted that this disability was the result of the radical prostatectomy. Here, the evidence reflects that the Veteran has erectile dysfunction, and that he receives special monthly compensation for loss of use of a creative organ. In this case, the Veteran's erectile dysfunction is noncompensable under Diagnostic Code 7522 because there is no deformity shown. The weight of the evidence simply fails to demonstrate that the Veteran's disability manifests in a penis deformity. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a compensable disability rating for erectile dysfunction is denied. B. Residuals of Radical Prostatectomy due to Prostate Cancer with Urinary Incontinence, and Bladder Neck Contracture The Veteran's prostate cancer has been rated under Diagnostic Code 7528. Active malignant neoplasms of the genitourinary system are rated as 100 percent disabling. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedures, the rating of 100 percent continues with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination is subject to the provisions of 38 C.F.R. § 3.105(e). Pursuant to 38 C.F.R. § 4.115(b), Diagnostic Code (DC) 7528, if there has been no local reoccurrence or metastasis following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, prostate cancer is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran's predominant postoperative residual is voiding dysfunction, for which he is currently in receipt of a 60 percent disability rating, the highest rating possible under 38 C.F.R. § 4.115(a) (requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day). In this instance, the only criteria which would afford the Veteran a rating in excess of 60 percent is under 38 C.F.R. § 4.115(b), DC 7528, malignant neoplasms of the genitourinary system; specifically, a recurrence or metastasis of the Veteran's prostate cancer would entitle the Veteran to a 100 percent disability evaluation. The medical evidence does not reflect, and the Veteran does not contend, that there has been a recurrence or metastasis of prostate cancer at any time during the period on appeal. The Veteran's prostate cancer was determined to be inactive during a VA examination in December 2009. The Veteran was also afforded a VA examination in August 2014. The VA examiner reported that the Veteran's prostate cancer was not active, and that he was in remission. After considering all of the evidence of record, including that set forth above, the Board finds that the Veteran's prostate cancer with radical prostatectomy does not warrant assignment of a disability rating in excess of 60 percent. The competent medical evidence does not reflect that the Veteran's prostate cancer returned or that he required continued treatment throughout the appeal period. As stated above, the residuals of the Veteran's prostate cancer with radical prostatectomy is characterized by a voiding dysfunction requiring 4 or more absorbent materials per day. Further, the Veteran's prostate cancer with radical prostatectomy has not been characterized as malignant neoplasms of the genitourinary system during the appeal period. Therefore, a rating in excess of 60 percent is denied. III. Separate Rating for Pudendal Neuralgia The Veteran has pudental neuralgia, following a radical prostatectomy due to his service-connected prostate cancer. The RO evaluated the Veteran's residuals of radical prostatectomy due to prostate cancer with urinary incontinence, bladder neck contracture, and pelvic floor pain (saddle anesthesia/ pudental neuralgia) as 60 percent disabling. The Board finds it is more beneficial to the Veteran to address whether a separate and distinct rating is warranted for his pudendal neuralgia disability. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher or separate rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology"). However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The veteran is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. August 2010 VA treatment records reflect that the Veteran reported pelvic discomfort. September 2010 VA treatment records also reflect that the Veteran was experiencing pelvic pain. October 2010 private treatment records reflect that the Veteran was being treated for pelvic floor pain. He described the pain as sitting on sharp granite. Upon examination, the pelvic region was tender on palpation. There was no change in sensory or motor functions of the lower extremities. The Veteran reported that he underwent caudal epidurals to help control his severe pelvic floor pain. See January 2013 statement. During the Veteran's August 2014 VA examination, the examiner determined that the Veteran suffered from pudendal neuropathy, a residual condition or complication due to prostate cancer or treatment for prostate cancer. The Veteran was afforded a Travel Board hearing in July 2017. He testified that he experienced chronic pudental neuropathy. A specific diagnostic code is not available for neuritis, neuralgia, or paralysis of the pudendal nerve under Diagnostic Codes 8510 - 8730 for disease of the peripheral nerves. See 38 C.F.R. §4.124a Diagnostic Codes 8510 - 8730 (2017). The Board notes that rating by analogy is appropriate for an unlisted condition where a closely related condition, which approximates the anatomical localization, symptomatology, and functional impairment, is available. 38 C.F.R. § 4.20 (2017). In this case, the Board finds that the pudendal nerve is most appropriately rated as analogous to impairment of the ilioinguinal nerve. Diagnostic Code 8730 provides a rating for neuralgia of the ilioinguinal nerve. Disabilities of the ilioinguinal nerve are rated under 38 C.F.R. § 4.124a, to include Diagnostic Codes 8530 (paralysis), 8630 (neuritis), and 8730 (neuralgia). The highest rating available for such impairment is 10 percent rating for severe to complete paralysis of the ilioinguinal nerve. Diagnostic Code 8530 provides a noncompensable rating for mild or moderate, and a 10 percent rating for severe to complete paralysis of the ilioinguinal nerve. According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. Upon review, the Board finds the evidence of record is consistent with a separate 10 percent rating for pudendal neuralgia associated with the Veteran's service-connected residuals of radical prostatectomy due to prostate cancer by analogy under Diagnostic Code 8799-8720. 38 C.F.R. § 4.124a. In reaching this determination, the Board has considered the guidance established in 38 C.F.R. §§ 4.123, 4.124, 4.124a. Here, the manifestations are sensory, to include pain. In the absence of other objective neurologic manifestations, rating by analogy to another code or a higher evaluation is not warranted. Accordingly, the Board concludes that a separate 10 percent rating, but no greater, is warranted for the Veteran's pudental neuralgia associated with the Veteran's service-connected residuals of radical prostatectomy due to prostate cancer. 38 C.F.R. § 4.3. This 10 percent rating is effective throughout the entire time period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). IV. Temporary Total Rating The Veteran contends that temporary total disability convalescent ratings are warranted under 38 C.F.R. § 4.30 for three different surgeries performed in February 2011, September 2011, and November 2012 that he underwent to treat residuals of a radical prostatectomy due to his service-connected prostate cancer. A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30; effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. A total rating will be assigned under 38 C.F.R. § 4.30 if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. Id. After reviewing the record in its entirety, the Board find that the weight of evidence does not support the criteria for a total convalescent rating under 38 C.F.R. § 4.30 following the surgeries performed in February 2011, September 2011, and November 2012. The Veteran underwent a cystoscopy in February 2011. Discharge paperwork instructed the Veteran to rest at home for the day following discharge, and then resume activity as tolerated the next day. He was advised to drink plenty of fluids. There is no medical evidence that supports the Veteran needed at least once month of convalescence, had severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or was immobilized by cast, without surgery, of one major joint or more. The Veteran had a penile prosthesis insertion procedure in September 2011. Treatment records indicate that the Veteran tolerated the procedure well and was in the recovery room without any complications. There is no medical evidence that supports the Veteran needed at least once month of convalescence, had severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or was immobilized by cast, without surgery, of one major joint or more. Following this procedure, the Veteran stated that he was in surgical recovery, which would last several months. See September 2011 statement. The Veteran underwent revision surgery in November 2012 to replace a defective penile prosthesis. The Veteran was discharged after one day with a Foley catheter and leg urine reservoir. The catheter was used for three weeks. Discharge paperwork reflects that the Veteran did not need any treatment or wound care. He was advised not to lift anything heavier than 5 pounds. A December 2012 follow-up appointment did not note any incompletely healed surgical wounds or the need for convalescence. When asked at the July 2017 Board hearing if he was ever told by a doctor that he could not return to work for any period of time, the Veteran responded that he was advised not to return to work following a 2009 radical prostatectomy and 2015 heart surgery. When further questioned, the Veteran testified that 30 days of convalescence would not work for him because he is not that type of person who could sit still. As to the first criterion for surgery necessitating at least one month of convalescence, there is no showing that any period of convalescence was necessary, let alone one month. In this regard, there is no indication from the VA treatment records that the Veteran required any period of convalescence. Additionally, when asked about convalescence following the three surgeries in February 2011, September 2011, and November 2012, the Veteran testified about two different surgeries requiring convalescence. Regarding the second alternate criterion requiring severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, the Board notes that such residuals are not supported by the weight of evidence in this case. Although records show that the Veteran needed a catheter for three weeks following the November 2012 surgery, this does not constitute severe post-operative residuals. Finally, the third alternate criteria, for immobilization by cast, without surgery, of one major joint or more, is not applicable in this case. As the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply and the claim for entitlement to temporary total ratings based on need for convalescence following surgeries performed in February 2011, September 2011, and November 2012 must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.30. ORDER Entitlement to a compensable rating for service connected erectile dysfunction is denied. Entitlement to a rating in excess of 60 percent for residuals of radical prostatectomy due to prostate cancer with urinary incontinence and bladder neck contracture is denied. Entitlement to a separate 10 percent evaluation for pudental neuralgia, associated with the Veteran's service-connected residuals of radical prostatectomy due to prostate cancer is granted. Entitlement to temporary total ratings based on surgical treatment necessitating convalescence following surgeries performed in February 2011, September 2011, and November 2012 is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs