Citation Nr: 1803869 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-21 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an effective date prior to June 29, 2011, for the grant of service connection for erectile dysfunction, to include as secondary to prostate cancer. 2. Entitlement to an initial compensable rating for residuals of prostate cancer, to include voiding dysfunction, prior to June 29, 2011, and in excess of 40 percent thereafter. (The issue of entitlement to an increased rating for an acquired psychiatric disorder is addressed in a separate decision under Docket No. 12-18 572). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2013, the RO granted the Veteran's TDIU claim, and the Veteran did not submit a notice of disagreement as to the effective date of this decision. As such, this issue is no longer on appeal. See Tyrues v. Shinseki, 23 Vet.App. 166, 176 (2009) (in situations where an issue is bifurcated, an appellant must then specifically appeal each bifurcated issue). In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO, and a transcript of the hearing is of record. The Board notes that the RO granted the Veteran's service connection claim for erectile dysfunction in both an August 2012 rating decision and statement of the case, and assigned a noncompensable rating, effective June 29, 2011. The Veteran filed a timely substantive appeal only as to the issue of an earlier effective date. Therefore, while the Board took testimony from the Veteran, in part, on the issue of an increased rating for erectile dysfunction, this issue is not properly before the Board because the Veteran did not file a timely notice of disagreement with respect to the assigned rating for his erectile dysfunction. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran filed a service connection claim for erectile dysfunction as secondary to prostate cancer and/or as a residual thereof, that was received by the RO on May 14, 2010, and that it was factually ascertainable at that time that the Veteran had erectile dysfunction as secondary to and/or as a residual of his prostate cancer. 2. Prior to June 29, 2011, the Veteran's prostate cancer residuals were characterized by mild voiding dysfunction that did not require the use of absorbent materials and/or an appliance. 3. Since June 29, 2011, the Veteran's prostate cancer residuals were characterized by voiding dysfunction, with the need to change absorbent pads approximately 2 to 4 times per day. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date of May, 14, 2010, but no earlier, for the grant of service connection for erectile dysfunction, to include as secondary to prostate cancer, have been met. 38 U.S.C. §§ 5103, 5103A, 5110(a) (2012); 38 C.F.R. §§ 3.1(r), 3.400 (2017). 2. The criteria for an initial compensable rating for residuals of prostate cancer, to include voiding dysfunction, prior to June 29, 2011, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.115b, Diagnostic Code (DC) 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date The Veteran asserts that he is entitled to an earlier effective date for the service connection of his erectile dysfunction. The effective dates for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2017). However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." See Hazan, 10 Vet. App. at 521. After a review of the evidence of record, the Board finds that an assignment of an effective date of May 14, 2010, but no earlier, is warranted. First, the Veteran submitted a claim for entitlement to service connection for erectile dysfunction as a residual of prostate cancer that was received by the RO in May 14, 2010. The Board determines that this is the date of the Veteran's service connection claim. Notably, the evidence does not indicate that he has ever filed a claim prior to this date, nor has he asserted as much. Moreover, the Board has also determined that the record fails to show that the RO received a prior informal written communication indicative of the Veteran's desire to seek a service connection claim for erectile dysfunction. Therefore, the Board finds that for effective date purposes, this is the date of receipt for the Veteran's claim. Secondly, the Board finds that the evidence is at least in equipoise that it was factually ascertainable that the Veteran had erectile dysfunction as secondary to, and/or as a residual of his prostate cancer, on May 14, 2010. Specifically, the Veteran's credible statements are sufficient to establish that he had erectile dysfunction at the time his application was received by the RO on May 14, 2014. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the Board finds that the evidence is in relative equipoise for the assignment of an effective date of May 14, 2010, but no earlier, for the Veteran's service-connected erectile dysfunction as secondary to his prostate cancer. Increased Ratings The Veteran is seeking an increased rating for his prostate cancer residuals, to include voiding dysfunction. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to June 29, 2011 Prior to June 29, 2011, the Veteran's prostate cancer residuals have been assigned a noncompensable rating under 38 C.F.R. § 4.115b, DC 7528 (addressing malignant neoplasms of the genitourinary system) for voiding dysfunction. Under DC 7528, a 100 percent rating is assigned for prostate cancer for 6 months following the cessation of treatments. As an initial matter, a 100 percent disability rating under DC 7528 is not warranted, as the evidence reflects that the Veteran did have prostate cancer treatments within 6 months at any point during the period on appeal. Specifically, the Veteran's treatment records report that he was last treated in 2006 for prostate cancer. Next, under DC 7528, if there has been no local reoccurrence or metastasis, a rating should be assigned for voiding dysfunction or renal dysfunction, whichever is the predominant residual. 38 C.F.R. § 4.115b. In this case, the RO determined that the Veteran's predominant residual was voiding dysfunction, and assigned a noncompensable rating. The Board agrees that voiding dysfunction is the predominant residual of the Veteran's prostate cancer. Therefore, in order to warrant a compensable rating for residuals of prostate cancer based on voiding dysfunction, the evidence must show urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed less than 2 times per day (20 percent). 38 C.F.R. § 4.115b, DC 7528. Based upon the evidence of record, the Board determines that a compensable rating is not warranted for the Veteran's voiding dysfunction prior to June 29, 2011. Specifically, the Veteran's January 2010 VA treatment records reflect that the Veteran had "minor urge and stress incontinence but has usually managed very well." Further, in a September 2010 VA examination, the Veteran reported normal urinary flow and intervals with "some minor incontinence related to urgency and stress with leakage not requiring pads." Therefore, given that the Veteran did not require the use of an appliance or absorbent materials, a compensable rating for this period on appeal is not for application. Since June 29, 2011 As of June 29, 2011, the Veteran has been assigned a 40 percent rating for voiding dysfunction under DC 7528. In order to warrant a rating in excess of 40 percent based on voiding dysfunction, the evidence must show urine leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent). 38 C.F.R. § 4.115b, DC 7528. In this case, a rating in excess of 40 percent is not warranted as of June 29, 2011. Specifically, the June 2011 VA treatment records reflect that the Veteran had some mild urinary incontinence. Further, at his June 2012 VA examination, the Veteran reported that he experiences severe urinary incontinence that requires him to wear an absorbent pad. On examination, the examiner noted that the Veteran had to change his appliance between 2 to 4 times per day. In a January 2013 treatment evaluation, the Veteran's urinary incontinence was mild. Similarly, in a March 2013 VA examination, the examiner determined that the Veteran's urinary dysfunction requires the use of absorbent materials that need to be changed between 2 to 4 times per day. In considering the appropriate disability rating, the Board acknowledges the Veteran's assertions that his voiding dysfunction is "severe" which requires him to change his appliance more than 4 times a day. Nevertheless, the Board finds the objective medical evidence to be more probative given that the medical evidence, including treatment records and VA examinations from June 2012, January 2013, and March 2013, report the Veteran's assertions that he only needed to change his appliance between 2 to 4 times per day. Therefore, a rating in excess of 40 percent is not warranted based upon the Veteran's statements. In determining whether the Veteran is entitled to a higher rating for residuals of prostate cancer for the entire period on appeal, the Board has considered whether an increased rating is for application based on renal dysfunction. Nevertheless, the objective medical evidence, including the VA examinations from September 2009, June 2012, and April 2013, reflect that the Veteran's prostate residuals have not manifested with symptomatology associated with renal dysfunction such as albuminuria, edema or significant hypertension. Additionally, the Board recognizes the Veteran's statements that he has a history of high blood pressure, however, there is no indication in the objective medical evidence that this is related to renal dysfunction caused by residuals of his prostate cancer. Therefore, based on the absence of symptoms related to renal dysfunction, an increased rating is not warranted on this basis. The Board has also considered the statements from the Veteran that his prostate residuals are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of voiding dysfunction because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his psychiatric and hand disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's prostate residuals have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA examinations are associated with the claims file. VA provided relevant and adequate examinations. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that additional records and a March 2013 VA examination has been associated with the claims file since the most recent August 2012 statement of the case. However, a review of these records and examination report reveals that the relevant records were previously on file and/or are redundant of records, information, and evidence already on file. Moreover, the Veteran did not raise any arguments regarding the consideration of this evidence. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33, 196 L. Ed. 2d 25 (2016). As a result, there is no prejudice to the Veteran and a remand for the RO's initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An effective date of May 14, 2010, but no earlier, for the grant of service connection for erectile dysfunction, to include as secondary to prostate cancer is granted. An initial compensable rating for residuals of prostate cancer, to include voiding dysfunction, prior to June 29, 2011, is denied. An initial rating in excess of 40 percent for residuals of prostate cancer, to include voiding dysfunction, as of to June 29, 2011, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs