Citation Nr: 18147721 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-45 234 DATE: November 6, 2018 ORDER An initial evaluation in excess of 20 percent for residuals of prostate cancer is denied. REMANDED Entitlement to an initial compensable evaluation for erectile dysfunction (ED) is remanded. FINDING OF FACT The Veteran’s residuals of prostate cancer disability are manifested by erectile dysfunction, but do not include: Renal dysfunction; or urinary frequency with either a daytime voiding interval of less than one hour or awakening to void 5 or more times per night; or any need for wearing absorbent materials that must be changed 2-4 times a day or more; or voiding obstruction. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of prostate cancer are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Residuals of prostate cancer are rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 7528, Note. For renal dysfunction, a 0 percent rating is warranted when there are albumin and casts with history of acute nephritis; or hypertension rated 0 percent under Diagnostic Code 7101. A 30 percent rating is warranted when albumin is constant or recurring with hyaline and granular casts or red blood cells; or with transient or slight edema or hypertension rated at least 10 percent under Diagnostic Code 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or a definite decrease in kidney function; or hypertension rated at least 40 percent under Diagnostic Code 7101. 38 C.F.R. § 4.115a. Voiding dysfunction is rated on the basis of urine leakage, frequency, or obstructed voiding. When there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is warranted, if the Veteran is required to wear absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted, when the Veteran is required to wear absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted when the Veteran is required to wear absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. In cases of urinary frequency, a 10 percent rating is warranted when there a daytime voiding interval between two and three hours, or; when the Veteran awakens to void two times per night. A 20 percent rating is warranted when there a daytime voiding interval between one and two hours, or; when the Veteran awakens to void three to four times per night. A 40 percent rating is warranted when there a daytime voiding interval of less than one hour, or; when the Veteran awakens to void five or more times per night. 38 C.F.R. § 4.115a. With respect to obstructed voiding, a noncompensable rating is warranted when there is obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating is warranted when there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: Post void residuals greater than 150 cc; Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); Recurrent urinary tract infections secondary to obstruction; or Stricture disease requiring periodic dilatation every two to three months. A 30 percent rating is warranted for voiding dysfunction when there is urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial disability evaluation in excess of 20 percent for genitourinary residuals of prostate cancer. The Veteran contends that voiding dysfunction warrants the assignment of a higher disability evaluation. The Board concludes that the preponderance of the evidence is against the claim. The Veteran’s residuals of prostate cancer disability are manifested by erectile dysfunction, but do not include: Renal dysfunction; or urinary frequency with either a daytime voiding interval of less than one hour or awakening to void 5 or more times per night; or any need for wearing absorbent materials that must be changed 2-4 times a day or more; or voiding obstruction. The Veteran’s residuals of prostate cancer have consisted, primarily, of daytime voiding interval between 1 and 2 hours, with nighttime awakening to void 3 to 4 times. 38 U.S.C. § 1155, 5103, 5103A; 38 C.F.R. § 3.159, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. The Veteran was diagnosed with voiding dysfunction, as secondary to residuals of prostate cancer, in a June 2013 VA examination. The examiner noted prostate specific antigen (PSA) levels of 0.3 ng/ml from March 2013 which did indicate reoccurrence of prostate cancer. The examiner noted no urine leakage, use of an appliance, or urinary tract infection. The examiner noted hesitancy, slow or weak stream, and decreased force of stream; however, use of intermittent or continuous catherization was not required. The examiner noted daytime voiding interval between 1 and 2 hours, with nighttime awakening to void 3 to 4 times. The examiner opined that residuals of prostate cancer did not impact the ability to work. The Veteran’s PSA levels were 0.03 ng/ml and indicated prostate cancer was in remission in a January 2017 VA examination. The examiner noted no urine leakage, use of an appliance, or urinary tract infection. The examiner noted decreased force of stream, but no other obstructive voiding symptoms. The examiner noted daytime voiding interval between 1 and 2 hours, with nighttime awakening to void 3 to 4 times. The examiner opined that residuals of prostate cancer impacted the ability to work in that the Veteran requires employment with access to restrooms when needed. Neither the lay nor the medical evidence of record more nearly reflects the criteria for a higher rating in the absence of complaints or findings of a daytime voiding interval less than one hour, or awakening to void 5 or more times per night, or wearing of absorbent materials that must be changed 2 to 4 times per day. The June 2013 examiner noted that intermittent or continuous catherization was not required. Additionally, the examiners noted that use of appliance is not required. Although the January 2017 examiner opined the disability impacted work, the Board finds that the opinion and evidence indicates that substantial employment is not prevented by the need for access to restrooms when needed. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although the Veteran claimed his doctor opined that the disability warranted a 50 percent rating, the available medical evidence does not show that the schedular criteria are more nearly met. Although the Veteran may believe that he meets the criteria for a higher or separate disability ratings related to his prostate cancer treatment, his complaints along with the medical findings do not meet the schedular requirements for a higher or separate evaluation, as explained and discussed above. The Board finds that the 20 percent evaluation is the maximum benefit available to the Veteran since there is no evidence to support an evaluation under any other Diagnostic Code which would result in a higher evaluation. 38 C.F.R. § 3.103(a); AB v. Brown, 6 Vet. App. 35 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). On balance, the weight of the evidence is against the claim for increase. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to an initial compensable evaluation for ED is remanded. The Veteran seeks an initial compensable evaluation for ED based on deformity. The Veteran was diagnosed with ED, as secondary to prostate cancer, in a June 2013 VA examination. The examiner noted loss of erectile power. However, no examination of the Veteran’s penis was conducted to determine if deformity was present. In a January 2017 VA examination, the examiner also noted loss of erectile power. However, no examination of the Veteran’s penis was conducted to determine if deformity was present. The Boards finds those examinations are inadequate since the examiners did not fully examine the Veteran. The Board finds that examination of the Veteran’s penis is relevant since the Veteran claimed penile deformity and the presence of penile deformity is required to obtain a compensable schedular rating. It is noted that entitlement to special monthly compensation based on loss of use of a creative organ has been previously established. Accordingly, to ensure VA has met its duty to assist, remand is required to obtain another examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA genitourinary examination to determine the current severity of service-connected erectile dysfunction. Specifically, the examiner should examine the Veteran’s penis and indicate whether the Veteran’s erectile dysfunction is manifested by penile deformity. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel