Citation Nr: 18143933 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-18 619 DATE: October 22, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for prostate cancer is denied. Entitlement to an initial compensable rating for erectile dysfunction (ED) is denied. Entitlement to an effective date prior to October 10, 2012, for service connection for prostate cancer is denied. Entitlement to an effective date prior to October 10, 2012, for service connection for ED is denied. Entitlement to an effective date prior to October 10, 2012, for the assignment of special monthly compensation (SMC) based on the loss of use of a creative organ is denied. FINDINGS OF FACT 1. The Veteran has ED, for which he is receiving SMC, but no related penile deformity or abnormality. 2. The Veteran’s prostate cancer is in remission, but cancer treatment has caused voiding dysfunction, to include frequent urination and obstructed voiding, manifesting as a daytime voiding interval between one and two hours, a tendency to awaken to void three to four times nightly, marked hesitancy and a decreased force of urinary stream. 3. On October 10, 2012, the RO received from the Veteran a formal claim for service connection for prostate cancer. 4. Prior to filing the claim, the Veteran was diagnosed with prostate cancer and ED. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for ED have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 4.20, 4.31, 4.115b, Diagnostic Code 7522. 2. The criteria for entitlement to an initial rating in excess of 20 percent for prostate cancer have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for entitlement to an effective date prior to October 10, 2012, for a grant of service connection for prostate cancer, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an effective date prior to October 10, 2012, for a grant of service connection for ED, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to an effective date prior to October 10, 2012, for the assignment of SMC based on the loss of use of a creative organ, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to August 1970, including in the Republic of Vietnam. In September 2018, he submitted a document electing to participate in VA’s Rapid Appeals Modernization Program (RAMP) and indicating he wants Higher-Level review of these claims based upon the evidence of record at the time of that election, which was received on September 8, 2018. Increased Ratings The Veteran seeks higher initial ratings for ED and prostate cancer. He claims that those disabilities have changed his life so significantly that a combined 80 percent rating should be assigned. He contends that the cancer initially required a painful biopsy, surgery, and radiation and hormone therapies. Allegedly, his prostate cancer now necessitates taking multiple medications, waking three times nightly to use the bathroom and stopping frequently while driving on vacation, hinders his ability to garden as he empties his bladder too frequently and shop as he must always be aware of restroom location, has caused him to gain weight and develop breasts, and, by interfering with his ability to have erections, has taken away his manhood. Disability ratings are determined by evaluating the extent to which a claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial compensable rating for ED The RO has rated the Veteran's ED, a condition not listed in the rating schedule, pursuant to Diagnostic Code 7522, by analogy. An adjudicator may rate unlisted condition as closely related disease or injury in which functions affected and anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Diagnostic Code 7522 provides that a 20 percent rating is assignable for a penis deformity with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The RO has assigned the ED a 0 percent rating. When a Diagnostic Code does not provide criteria for 0 percent rating and the criteria for compensable rating are not met, a 0 percent rating should be assigned. 38 C.F.R. § 4.31. The Veteran does not claim that his penis is deformed and medical evidence does not show any penis deformity associated with the Veteran’s ED. According to post-service treatment records, the Veteran complained of ED during this appeal, after he had undergone treatment for prostate cancer. During treatment visits, no medical professional noted any penis abnormality other than a loss of erectile power. Similarly, during VA examinations conducted in June 2013, July 2013, and February 2015, examiners noted either no ED or ED with normal genitalia or no penile deformity. The Board finds that the preponderance of the evidence is against a finding of penile deformity. Accordingly, the evidence does not satisfy the criteria for an initial compensable rating for ED under Diagnostic Code 7522 and no other Diagnostic Code is found to be more applicable or to provide the Veteran with a compensable rating. The Veteran is being compensated for the effect of his ED. He receives special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for the loss of use of a creative organ, an award contemplating the reproductive symptoms associated with ED. As the preponderance of the evidence is against the assignment of a compensable rating for ED, the claim must be denied. Entitlement to an initial rating in excess of 20 percent for prostate cancer The RO has rated the Veteran’s prostate cancer as 20 percent disabling under Diagnostic Code 7528, which governs ratings of malignant neoplasms of the genitourinary system and allows for the assignment of a temporary 100 percent rating until there is cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. 38 C.F.R. § 4.115b, Diagnostic Code 7528. A mandatory VA examination is to be conducted at the expiration of six months. Any change in rating based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the condition is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Voiding dysfunction is rated as urine leakage, urinary frequency or obstructed voiding. 38 C.F.R. § 4.115a. Here, the Veteran was diagnosed with prostate cancer in 2009 and had completed all treatment for this cancer prior to filing his claim for service connection for prostate cancer. Accordingly, a 100 percent rating, temporary or otherwise, may not be assigned the treatment under Diagnostic Code 7528. Rather, the focus is on the nature and severity of all residuals of the cancer and its treatment. Treatment records and VA examination reports indicate that, since the treatment, the Veteran's prostate cancer has been in remission, but he has experienced residuals of the treatment. During treatment visits dated since 2011, he reported ED and voiding dysfunction manifesting as frequent urination. VA examiners confirmed those residuals during VA examinations conducted in July 2013 and February 2015. Both examiners noted that, during the day, the Veteran had voiding intervals between one and two hours and, during the night, he awakened to void three to four times. In addition to urinary frequency, the 2015 examiner noted urinary urgency; marked hesitancy; a slow, weak stream; and decreased force of the stream, signs of obstructed voiding. During this appeal, no treatment provider or VA examiner noted any residual renal dysfunction or urinary leakage. Therefore, it is most appropriate to rate the Veteran’s residuals as voiding dysfunction, or more specifically, as frequency or obstructed voiding. In either case, the criteria for an initial rating in excess of 20 percent are not met. Urinary frequency is rated based upon daytime and nighttime voiding intervals. A 20 percent rating is assigned when the daytime voiding interval is between one and two hours or the claimant is awakening to void three to four times nightly. The Veteran reports and the evidence confirms urination of that frequency. A 40 percent rating requires a daytime voiding interval of less than one hour or the claimant awakening to void five or more times per night. 38 C.F.R. § 4.115a. The Veteran does not contend and the evidence does not show that frequency urination. The Board finds that the Veteran’s statements and the VA examinations are the most persuasive evidence and that evidence does not show voiding interval during the daytime of less than one hour or awakening to void five or more times per night. To be assigned a rating in excess of 20 percent for obstructed voiding, the evidence must show that any urinary retention requires intermittent or continuous catheterization. Again, the Veteran has made no such assertion and the evidence shows no such treatment. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher rating for residuals of prostate cancer. Therefore, the claim must be denied. Effective Date Entitlement to an effective date prior to October 10, 2012, for a grant of service connection for prostate cancer Entitlement to an effective date prior to October 10, 2012, for a grant of service connection for ED Entitlement to an effective date prior to October 10, 2012, for the assignment of SMC based on the loss of use of a creative organ The Veteran seeks an effective date prior to October 10, 2012, for service connection for ED and prostate cancer and the assignment of SMC based on the loss of use of a creative organ. A July 2013 rating decision established service connection for prostate cancer and ED and entitlement to SMC based on the loss of use of a creative organ, all effective October 10, 2012, the date VA received the Veteran’s formal claim for service connection for prostate cancer. The Veteran requests an earlier effective date of September 11, 2009, the date on which he states that he underwent a biopsy that showed he had prostate cancer. He contends that VA regulations clearly indicate the effective date should correspond to the date entitlement arose or the date when medical evidence first shows the condition exists. Treatment records show the Veteran had an elevated PSA in 2008, was diagnosed with prostate cancer in 2009, and was shown to have secondary ED in 2011. That is thus when the Veteran’s entitlement to service connection for prostate cancer and ED, and SMC based on the loss of use of a creative organ, arose. However, contrary to the Veteran’s assertion, the critical question is when the Veteran filed a claim for this benefit. The effective date for a grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the Veteran had active service from September 1966 to August 1970, but he did not file a claim for service connection for prostate cancer until decades after separation, which was not within one year of separation from service. VA received the claim on October 10, 2012. Accordingly, the appropriate effective date to assign in this case is October 10, 2012, the date of receipt of claim, as it is later than 2009, the date entitlement arose. The Board acknowledges the Veteran’s assertion that he did not file a claim for service connection for prostate cancer earlier because, prior to 2012, he did not know VA considered prostate cancer to be presumed to be related to herbicide agent exposure in Vietnam. While that might be true, there is no law or regulation allowing for an earlier effective date based on such mitigating circumstances. The evidence in this case shows that a claim was received on October 10, 2012, more than one year following separation from service. The evidence does not show any earlier claim, formal or informal. Therefore, an effective date earlier than October 10, 2012, cannot be assigned. As the preponderance of the evidence is against the claim, the claim must be denied. Harvey Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. N., Counsel