Citation Nr: 1805607	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  11-16 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to an increased disability rating in excess of 60 percent for urinary incontinence post prostate cancer.

2. Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to May 1969 in the United States Marine Corps.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The procedural history of the case is as follows. In March 2009, the RO proposed to reduce the Veteran's prostate cancer to 40 percent. In May 2009, the Veteran's prostate cancer evaluation was reduced to 40 percent. In the above cited April 2011 rating decision, the RO increased the Veteran's disability rating for urinary incontinence post prostate cancer to 60 percent and assigned an effective date of August 1, 2009. The Veteran appealed this decision and the issue is now before the Board.

In December 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file.

The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The Veteran had urine leakage requiring the wearing of absorbent materials requiring more than four changes per day and the use of an appliance; however, there is no evidence of renal dysfunction resulting from the Veteran's resolved prostate cancer.


CONCLUSION OF LAW

An increased rating in excess of 60 percent for urinary incontinence is not warranted. 38 U.S.C.§ 1155; 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7528.


REASONS AND BASES FOR FINDING AND CONCLUSION

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 


Urinary Incontinence

The Veteran's urinary incontinence is rated under 38 C.F.R. § 4.115b (2017). The regulation directs that disabilities rated under this code should be rated as voiding dysfunction. See 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2017).

Voiding dysfunction is assigned a 60 percent disability rating for urinary incontinence when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A 60 percent disability rating is the maximum allowable rating under voiding dysfunction.

In an April 2011 rating decision, the Veteran was afforded a 60 percent disability rating for his urinary incontinence, the maximum allowable rating under the schedule, for the entire period on appeal.

The Veteran has been afforded several VA examinations for his voiding dysfunction. At a December 2010 VA examination, the Veteran reported urinary frequency of 8 times per day every 30 minutes to an hour with nocturia 7 times per night. The Veteran also reported constant catheterization for his urinary symptoms. 

Private treatment records indicate that the Veteran suffers from renal dysfunction. The Veteran was noted to have hydronephrosis and stage III chronic kidney disease; however, these symptoms were attributed to the Veteran's hypertension and not to residuals from his resolved prostate cancer. The record also indicates the genitourinary conditions of erectile dysfunction and frequent urinary tract infections.

At a December 2017 VA examination, the examiner noted that the Veteran's medical history showed a long standing history of incontinence with intractable symptoms requiring urinary diversion with ileal conduit in 2009. The Veteran stated that the urostomy bag fills frequently during the day and at night requiring emptying the bag several times per day depending on liquid intake.

The Veteran has a history of prostate cancer in 2006; however, the condition has resolved and there is no evidence that there is an active tumor or neoplasm of the genitourinary system. Additionally, private treatment records have attributed his renal dysfunction to his non-service connected hypertension and not to his prostate cancer. As such, the Veteran is rated under voiding dysfunction under 38 C.F.R. § 4.115b. Since he has been assigned a 60 percent disability rating, the maximum rating under the schedule, a higher disability rating is not warranted.


ORDER

Entitlement to an increased disability rating in excess of 60 percent for urinary incontinence post prostate cancer is denied.


REMAND

In December 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. Based on the Veteran's testimony, he believes that he is unable to work because of his service connected disabilities.

The Veteran's representative argues that it is proper to address whether he is entitled to TDIU on a schedular basis. 38 C.F.R. § 4.16(a); see Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that TDIU is part of claim for increased compensation).

Currently, the Veteran is rated at 60 percent for his urinary incontinence, 30 percent for his post-traumatic stress disorder (PTSD), 10 percent for a shell fragment wound to his left foot and left lower leg, a noncompensable rating for his left arm scar, and a noncompensable rating for his erectile dysfunction. Based on 38 C.F.R. §4.16 (2017), the Veteran meets the criteria for TDIU consideration as he has at least one disability rated at 40 percent and his combined evaluation for compensation is 80 percent since August 1, 2009 based on the aforementioned disability ratings.

While the Board has jurisdiction to address the Veteran's TDIU claim under Rice at 447 (2009), it notes that the RO has not addressed the issue of the Veteran's employability in the first instance and has not considered all of his service connected disabilities in their aggregate. The Board points to VA's December 2015 SSOC which does not address 38 C.F.R. §4.16 (2017) as substantive law considered in its decision. Additionally, the Veteran and his representative have argued, based on all of his disabilities, that he is unable to work; and therefore, TDIU is warranted. 

The Board notes that in December 2017, the Veteran was afforded VA examinations on his genitourinary and reproductive systems. The examinations revealed that the Veteran's current disabilities affect his ability to work, but that sedentary employment would be possible.  No examiner has, however, consider all of the Veteran's disabilities, including urinary incontinence, post-traumatic stress disorder (PTSD), shell fragment wound to his left foot and left lower leg, left arm scar, and erectile dysfunction, in determining whether he is able to secure substantially gainful employment.  Because the Board is precluded from exercising medical judgment, these findings would be useful prior to determining eligibility for TDIU.  

Accordingly, the case is REMANDED for the following action:

1. Forward the Veteran's claims file to an appropriate examiner to render an opinion concerning the functional effect of the service-connected disabilities on the Veteran's ability to obtain or maintain employment.  

The examiner should specifically comment on the functional impairment associated with urinary incontinence, PTSD, shell fragment wound to his left foot and left lower leg, left arm scar, and erectile dysfunction, including the effects of this disability on occupational duties and ADLs to assist the Board is determining whether this disability renders the Veteran unemployable - meaning incapable of obtaining substantially gainful employment versus employment that instead only would be considered marginal.

It therefore is most essential the examiner provide explanatory rationale for all opinions expressed, if necessary citing to specific evidence in the file supporting conclusions. If the examiner is unable to provide an opinion in response to any of the above questions, he/she must discuss why this is the case.

2. Then adjudicate the claim for TDIU, including considering all additional evidence obtained since the December 2015 SSOC. If the claim is not granted, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).




______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs