Citation Nr: 18146642 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 11-12 182 DATE: October 31, 2018 ORDER Entitlement to a compensable evaluation for erectile dysfunction is denied. Entitlement to an evaluation in excess of 40 percent for residuals of prostate cancer prior to January 21, 2016, is denied. Entitlement to an evaluation in excess of 60 percent for residuals of prostate cancer on or after January 21, 2016, is denied. FINDINGS OF FACT 1. The Veteran’s erectile dysfunction is productive of loss of erectile power for which he receives special monthly compensation; however, there is no associated penile deformity. 2. Prior to January 21, 2016, the Veteran’s residuals of prostate cancer did not require the use of an appliance or the wearing of absorbent materials that must be changed more than four time per day. He was already assigned an evaluation in excess of the maximum schedular evaluation available for obstructed voiding, urinary frequency, and urinary tract infections. 3. Since January 21, 2016, the Veteran’s residuals of prostate cancer have already been assigned the maximum schedular rating available. There has been no local reoccurrence, metastasis, or renal dysfunction. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.102, 3.159, 3.321, 4.1-4.14, 4.115b, Diagnostic Code 7522. 2. Prior to January 21, 2016, the criteria for an increased rating in excess of 40 percent for the residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.115(a), (b), Diagnostic Code 7528. 3. Since January 21, 2016, there is no legal basis for the assignment of a schedular rating higher than 60 percent for the Veteran’s residuals of prostate cancer. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.71(a), Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to April 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision. In that rating decision, it was proposed that the Veteran’s service-connected prostate cancer be decreased from 100 percent to 20 percent. In addition, the Agency of Original Jurisdiction (AOJ) granted service connection for erectile dysfunction and assigned a noncompensable evaluation effective from March 5, 2009, and granted entitlement to special monthly compensation based on loss of use of a creative organ effective from March 5, 2009. Thereafter, in a June 2009 rating decision, the AOJ decreased the rating for the Veteran’s prostate cancer to 20 percent, effective from September 1, 2009, and continued the Veteran’s noncompensable evaluation for erectile dysfunction. In a March 2011 rating decision, the AOJ increased the rating for prostate cancer to 40 percent, effective from September 1, 2009. In an August 2018 rating decision, the AOJ increased the rating for prostate cancer to 60 percent, effective from January 21, 2016. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an increased evaluation for the residuals of prostate cancer remains on appeal. In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the AOJ. A transcript of the hearing has been associated with the record. In July 2015 and November 2017, the Board remanded the case for additional development and to ensure due process. That development was completed, and the case has since been returned to the Board for appellate review. Neither the Veteran nor his representative 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 a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Erectile Dysfunction The Veteran has been assigned a noncompensable evaluation by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with loss of erectile power. During a March 2009 VA examination, the Veteran related that he had erectile dysfunction and that vaginal penetration was not possible with or without medication. A physical examination of the Veteran’s penis was normal. During the May 2015 hearing, the Veteran stated that he had no use of his penis. During a January 2016 VA examination, the Veteran reported that he had complete erectile dysfunction after treatment for his prostate cancer. He indicated that he was unable to achieve an erection sufficient for penetration and ejaculation with or without medication. The VA examiner noted that there was no penile deformity on examination. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected erectile dysfunction. The evidence of record indicates that the Veteran has loss of erectile power, but does not indicate that he has penile deformity. Indeed, the VA examinations found that his penis was normal. Therefore, the criteria for an evaluation of 20 percent are not more nearly approximated. The Board also observes that the Veteran is in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114 (k) based on the loss of use of a creative organ for his erectile dysfunction. Thus, the Veteran is compensated for his erectile dysfunction and any associated symptoms. Therefore, the Board finds that the weight of the evidence is against a compensable evaluation for erectile dysfunction. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Residuals of Prostate Cancer Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344. However, the Board finds that these provisions are not applicable in the present case because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, which evaluates malignant neoplasms of the genitourinary system, contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. Therefore, the AOJ’s action was not a “rating reduction,” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). In other words, this is essentially a staged rating case rather than a formal reduction case because of the temporal element of Diagnostic Code 7528. In short, the rating reduction in this case was procedural in nature and by operation of law. In this case, the Veteran’s residuals of prostate cancer are currently assigned a 40 percent evaluation prior to January 21, 2016, and a 60 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7527. Diagnostic Code 7527 provides that prostate gland injuries, infections, hypertrophy, and postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. Diagnostic Code 7528, pertaining to malignant neoplasms of the genitourinary system, directs that if there has been no local recurrence or metastasis, then the cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. The Veteran’s residuals of prostate cancer have been rated under 38 C.F.R. § 4.115a for voiding dysfunction as the predominant disability. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent evaluation is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night warrants. A 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night. Id. Obstructed voiding includes ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post- void residuals greater than 150 cubic centimeters (cc’s); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc’s per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. Historically, the evidence of record shows that the Veteran was diagnosed with adenocarcinoma of the prostate in May 2005. He had radioactive seed implantation to treat his cancer in October 2005. During a March 2009 VA examination, the Veteran reported urinary symptoms, including urgency, hesitancy or difficulty starting a urine stream, weak or intermittent urine stream, and dribbling. He stated that his daytime voiding interval was two to three hours and that he had four voidings per night. He denied having urinary leakage or incontinence, a history of recurrent urinary tract infections, and a history of obstructed voiding. A physical examination of the bladder, anus and rectum, urethra, and testicles was normal. The examination showed an enlarged prostate. Laboratory results showed the Veteran’s prostate-specific antigen (PSA) was 0.495 ng/mL. In an April 2009 private treatment note, a private radiation oncologist reported that the Veteran had no dysuria, hematuria, hematochezia, melena, or tenesmus, but he had developed nocturia at up to 8 times per night. The Veteran reported that he was prescribed Flomax in the past, but the medication had caused significant worsening in his hesitation with urination. He related that he wore pads for occasional incontinence. The Veteran indicated that he also developed significant urgency over the past 6 to 12 months that was not present one year ago. The oncologist noted that there was no evidence of disease (NED) regarding the Veteran’s history of prostate cancer, but he did note that the Veteran had developed a change in symptoms over the past 6 to 12 months, which could have been due to urethral stricture or his related chronic history of low back problems. In an April 2009 private treatment note, a private urologist noted that the Veteran was treated for prostate cancer with brachytherapy. He indicated that the Veteran’s PSA was stable and that his most recent PSA was 0.45 ng/mL. The Veteran stated that he had rare incontinence. He complained of lower urinary tract symptoms and problematic nighttime frequency. During a May 2010 VA psychiatry assessment, the Veteran reported that he was cancer-free, but he continued to wake three to five times per night. He stated that he had problems with frequent nighttime awakenings, usually to toilet, for the past five years. In a January 2011 VA treatment note, the Veteran related that he continued to have trouble post-radiation seeds. He described sphincter issues and an inability to empty his bladder. He also stated that he had occasional stool when he pushed his bladder. In a June 2011 VA treatment note, the Veteran reported that his physician told him that there was not much more that he could do about the Veteran’s post-seed sphincter issues. The Veteran continued to take Flomax. He noted that he had occasional leaking stool if he pushed his empty bladder or while urinating. In August 2011, October 2012, February 2014, and May 2015 VA treatment notes, the Veteran described continued bladder and bowel incontinence, including rectal seepage that required the use of adult diapers. During the May 2015 hearing, the Veteran reported that he had nocturia at least five times per night. He indicated that he had to urinate between six to ten times per day. He also stated that he changed pads at least five times per day due to urine and bowel leakage. He related that that he had bowel movements and urination at the same time because he was unable to grip his rectum. He reported that he started needing to change pads as frequently as up to ten times per day since at least 2009 and that his symptoms had worsened in severity since that time. During a January 2016 VA examination, the Veteran reported that he began having side effects two to four years following his October 2005 radiation seed implantation. He described trouble with urination and increased nighttime frequency. He noted nocturia five to six times per night. He indicated that he urinated 20 or more times per day. He also described spontaneous urinary leakage. He related that he felt when his bladder was full and that he could control his urination when he felt the need to go. He stated that he was prescribed Flomax, but noted that the medication was not effective. He related that he also developed bowel problems and that he had a bowel movement every time that he urinated. He also had stool leakage, which varied in amount depending on the consistency of his stool. He stated that he had to wear adult diapers all the time and that he had to change them five to six times daily or more if he had loose stool. He reported that a gastrointestinal physician told him that his bowel problems were a result of the implants. The VA examiner noted that the Veteran had voiding dysfunction that caused urine leakage and required absorbent material, which must be changed more than four times per day. She indicated that the voiding dysfunction caused increased urinary frequency with a daytime voiding interval of less than one hour and nighttime awakening to void five or more times per night. The VA examiner reported that the voiding dysfunction did not cause signs or symptoms of obstructed voiding. The Veteran denied a history of recurrent symptomatic urinary tract or kidney infections. Laboratory results showed a PSA of 0.130 ng/mL. The VA examiner noted that the Veteran complained of bowel symptoms related to treatment for his prostate cancer; however, she noted that there were no medical records or other objective evidence to confirm that he had a rectum or intestine diagnosis attributable to prostate cancer and its treatment. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected residuals of prostate cancer. Specifically, the Board finds that the criteria for a rating in excess of 40 percent were not met for the residuals of prostate cancer at any time prior to January 21, 2016. In order to obtain the next higher 60 percent rating, the evidence must establish continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. The Board does acknowledge that, during the May 2015 hearing, the Veteran reported that he started needing to change pads as frequently as up to ten times per day since at least 2009. However, during the March 2009 VA examination, he denied having urinary leakage or incontinence. Private treatment records dated in April 2009 also indicated that the Veteran stated that he used pads for occasional incontinence and reported on another occasion that month that he had rare incontinence. VA treatment records dated in 2014 and 2015 further show that he was advised to use diapers four times a day as needed for incontinence. Prior to February 2014, the VA treatment records indicated that the diapers needed to be changed twice a day. Thus, the contemporaneous treatment records contradict the hearing testimony regarding the frequency that the absorbent material need to be changed during this time period. Therefore, the Board finds that the preponderance of the evidence shows the Veteran did not have continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. Moreover, a 40 percent evaluation is the the maximum schedular rating available for urinary frequency and is higher than the maximum schedular rating for obstructed voiding and urinary tract infections. There is also no indication of any renal dysfunction. Accordingly, the Veteran’s residuals of prostate cancer do not warrant a disability rating in excess of 40 percent prior to January 21, 2016. Since January 21, 2016, the Veteran has been assigned a 60 percent evaluation for his residuals of prostate cancer pursuant to 38 C.F.R. § 4.115 (b), Diagnostic Code 7527. As noted above, under Diagnostic Code 7527, residuals of prostate gland injuries, infections, and hypertrophy are evaluated as voiding dysfunction or urinary tract infection, whichever is predominant. A 60 percent evaluation is the maximum rating available to voiding dysfunction, and a 30 percent evaluation is the maximum rating available for urinary tract infections. Only the predominant area of dysfunction shall be considered for rating purposes. As such, a 60 percent evaluation represents the maximum schedular rating available under that diagnostic code. Therefore, an evaluation in excess of 60 percent cannot be granted under Diagnostic Code 7527. The Board certainly acknowledges the Veteran's chronic symptoms, such as urinary frequency and the wearing of absorbent materials. Nevertheless, the rating code does not permit an evaluation in excess of 60 percent for this voiding disability. The Board has also considered the application of Diagnostic Code 7528, which governs the ratings of malignant neoplasms of the genitourinary system. Under that diagnostic code, a 100 percent evaluation is assigned following the cessation of surgical, x-ray, or other therapeutic procedure. If there has been no local reoccurrence or metastasis, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran has not had prostate cancer at any time during the appeal period. In fact, the January 2016 VA examiner indicated that he was in remission and that he had undergone brachytherapy in 2005. He stated that there was no evidence of local reoccurrence or metastasis. Thus, the disability must be rated on residuals. As noted above, the Veteran is already assigned the maximum schedular evaluation for voiding dysfunction. Moreover, there is no indication that the Veteran has any renal dysfunction. In fact, the January 2016 VA examiner indicated that there was no renal dysfunction due to the service-connected disability. The Board also finds that an increased evaluation cannot be assigned pursuant to other potentially applicable diagnostic codes. However, even if the Veteran had urinary tract infections, the maximum rating is only 30 percent. Moreover, service connection has already been granted for erectile dysfunction, and he has been awarded special monthly compensation based on the loss of use of a creative organ. Accordingly, the Board finds that an increased evaluation is not warranted under any of the diagnostic code at any point during the appeal period. The Board also notes that the Veteran and his representative have argued for an increased rating for the residuals of prostate cancer by describing the Veteran’s bowel symptoms. However, the January 2016 VA examiner specifically addressed this contention and stated that there are no records or objective evidence to confirm that he has a rectum or intestine diagnosis attributable to prostate cancer and its treatment. Based on the foregoing, the Board finds that the Veteran is not entitled to an evaluation in excess of 60 on or after January 21, 2016. Neither the Veteran nor his representative has raised any other issues with the increased evaluation claim for residuals of prostate cancer, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel