Citation Nr: 18149238 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-38 716 DATE: November 9, 2018 ORDER Entitlement to a compensable rating for erectile dysfunction is dismissed. Entitlement to a 20 percent disabling rating, and no more, for radical prostatectomy residuals is granted. FINDINGS OF FACT 1. In his May 2018 Correspondence, the Veteran withdrew his appeal for an entitlement to a compensable rating for erectile dysfunction. 2. The evidence of record more closely approximates that the Veteran suffers from voiding every one to two hours because of his prostatectomy residuals. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the entitlement to an initial compensable rating for erectile dysfunction appeal have been met. See 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. For the entire appeal period, the criteria for a 20 percent disabling rating, and no more, for prostate cancer residuals have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, (DC) 7527 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Withdrawal of Appeal Entitlement to an initial compensable rating for erectile dysfunction The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105. An appellant or an authorized representative may withdraw any or all issues involved in an appeal at any time before the Board promulgates a decision. See 38 C.F.R. § 20.204. In his May 2018 Correspondence, the Veteran stated, “I wish to withdraw my appeal with regards to entitlement to increase for erectile dysfunction.” Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’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 (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an initial compensable rating for radical prostatectomy, residuals The Veteran contends that his prostate cancer residuals warrants a compensable rating. He is currently rated under DC 7527. DC 7527 rates prostate gland injuries, infections, hypertrophy and postoperative residuals as urinary tract infection or voiding dysfunction, whichever is predominant. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. For urine leakage, a 20 percent evaluation is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent material which must be changed less than 2 times per day. A 40 percent rating is assigned where the wearing of absorbent materials must be changed 2 to 4 times per day. The maximum rating of 60 percent is warranted when there is urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. For urinary frequency, a 20 percent rating is assigned for daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. A maximum 40 percent evaluation is assigned for daytime voiding intervals less than one hour, or; awakening to void 5 or more times per night. For obstructed voiding, a 30 percent rating requires urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. For urinary tract infection, a 10 percent evaluation is warranted when there is long-term drug therapy, one to two hospitalizations per year, and/or intermittent intensive management is required. A 30 percent evaluation is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or continuous intensive management. If urinary tract infections result in poor renal function, the disorder is rated as renal dysfunction. Id. In a December 2013 Prostate Cancer Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran’s prostate cancer is in remission. Further, no voiding dysfunction or recurrent symptomatic urinary tract infections was noted. VAMC treatment records do not show any treatment or complaints of voiding dysfunction or urinary tract infections. In his May 2018 Board hearing, the Veteran testified, in pertinent part, “[i]t’s every two or three hours that it seems like I have that urge to urinate. Then I’ll struggle for a while. Sometimes if I get involved in something that my mind goes to other things, it will go away, but then a while later it comes back to me and I usually have to find a quick place to go. I have dealings like when I go to a park or event and things like that where I’m always searching or looking to make sure that I’ve got a place, because once I get that urge it seems like it’s just a matter of quick timing because I have to go.” The Board finds that viewing the evidence of record in a light most favorable to the Veteran, a 20 percent disabling rating is warranted. Indeed, the Veteran’s testimony that he had the urge to urinate every two or three hours which more closely approximates a 20 percent rating assigned for daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. Further, the Veteran’s statements are competent and credible. The Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluation assigned and do not more nearly approximate the criteria for a higher evaluation at any time during the relevant period on appeal. Indeed, there is no evidence that the Veteran suffers from either daytime voiding intervals less than one hour, or; the wearing of absorbent materials must be changed 2 to 4 times per day, required for a higher disabling rating. In sum, when resolving reasonable doubt in the Veteran’s favor, the evidence supports a 20 percent disabling rating, and no more, for his prostate cancer residuals. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel