Citation Nr: 18152463 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-45 854 DATE: November 27, 2018 ORDER Entitlement to an initial disability rating greater than 10 percent for residuals of a radical prostatectomy is denied. Entitlement to a 20 percent disability rating for residuals of a radical prostatectomy is granted, beginning September 19, 2016. Entitlement to an initial compensable rating for erectile dysfunction (ED) is denied. FINDINGS OF FACT 1. Before September 19, 2016, the Veteran’s residuals of prostate cancer were predominantly characterized by urinary frequency, with daytime voiding interval being between two and three hours or the Veteran awoke to void two times per night; and there was no report of the Veteran requiring the wearing of absorbent materials. 2. On September 19, 2016, the evidence showed that the Veteran’s residuals of prostate cancer are manifested by urinary incontinence requiring the wearing of absorbent materials that must be changed less than two times per day. 3. The probative evidence of record shows that the Veteran’s ED has been manifested by the loss of erectile power but not the deformity of the penis, internally or externally. CONCLUSIONS OF LAW 1. Before September 19, 2016, the criteria for an initial disability evaluation in excess of 10 percent for residuals of a radical prostatectomy were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2018). 2. On September 19, 2016, the criteria for a 20 percent disability evaluation for residual radical prostatectomy were approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.115a, 4.115b, Diagnostic Code 7528 (2018). 3. The criteria for a compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.115b, Diagnostic Code 7522 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision of July 2015 granted service connection for prostate cancer, residuals of a radical prostatectomy at an evaluation of 100 percent, effective November 9, 2009, and a noncompensable evaluation, effective June 1, 2010. The rating decision also granted service connection for erectile dysfunction (ED), evaluated at a noncompensable rate, effective November 9, 2009. The Veteran disagreed with the noncompensable rating assigned for residuals of his prostate cancer and for ED from the effective date of November 09, 2009. A Decision Review Officer (DRO) decision of September 2016 increased the evaluation for prostate cancer, residual radical prostatectomy, from a noncompensable rating to 10 percent, effective June 1, 2010. As the rating of July 2015, represents a partial grant, the claim is still in appellate status. The 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. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a non-service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2018); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. 1. Residuals of a radical prostatectomy The Veteran’s residual radical prostatectomy is currently evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, which governs malignant neoplasms of the genitourinary system, and provides that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). In this case, the provisions of 38 C.F.R. § 3.105 (e) do not apply because the Veteran’s monthly compensation payments were never actually reduced. The July 2015 rating decision and subsequent DRO decision resulted in a retrospective staged rating, and there was no reduction in monthly compensation payments. See Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009). DC 7528 instructs that if at the end of the six-month period, there has been no local recurrence or metastasis, rate residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. In this case, the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures was the date of his prostatectomy, November 18, 2009. This is the date that the cancer was removed. Six months from that date is May 18, 2010. He has not asserted, and the evidence does not show, that he has had a local recurrence or metastasis. The Veteran does not assert, and the evidence does not show that he has renal dysfunction. Therefore, these criteria do not apply in this case. Per 38 C.F.R. § 4.115a, dysfunctions of the genitourinary system, voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. Under urinary frequency, 10 percent rating is warranted when the daytime voiding interval is between two and three hours or the Veteran awakens to void two times per night. A 20 percent rating is warranted when the daytime voiding interval is between one and two hours or the Veteran awakens to void three to four times per night. Urinary frequency with a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent evaluation. 38 C.F.R. § 4.115a. The lowest available rating for voiding dysfunction is 20 percent, which is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating is warranted when the absorbent materials must be changed two to four times per day. A disability that requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a (2018). Obstructed voiding involving symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a noncompensable evaluation. 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 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; and (4) stricture disease requiring periodic dilatation every two to three months requires a 10 percent evaluation. A 30 percent evaluation is warranted when there is urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a (2018). The record does not show that the Veteran has obstructed voiding. Therefore, these criteria are not favorable to him. In his September 2015 Notice of Disagreement (NOD), the Veteran stated that he had to urinate frequently and had to get up every night to urinate. He did not specify his voiding interval. The Veteran underwent a VA examination in August 2016. The examiner noted that the Veteran had not had any treatment for his prostate cancer since the December 2010 rating decision but, he went for prostate-specific antigen (PSA) testing often. He concluded that the prostate cancer was in remission and treatment completed, but the Veteran was “currently in watchful waiting status.” The examiner also noted that the Veteran had voiding dysfunction, which caused urine leakage, as a result of the prostatectomy. The increased urinary frequency resulted in daytime voiding intervals between two and three hours. The examiner indicated that the Veteran did not require the wearing of absorbent material or use of an appliance. The examiner noted that the Veteran did not have signs or symptoms of obstructed voiding or a history of urinary/kidney infection. The examiner noted that the Veteran did not have renal dysfunction. The examiner noted that the Veteran had ED, attributable to the diagnosis of prostatectomy. The examiner noted that the Veteran was unable to achieve an erection sufficient for penetration and ejaculation without medication. No other conditions or symptoms were reported as related to his prostatectomy. In support of his claim for a higher rating, the Veteran provided additional lay statements. In his September 19, 2016 Form 9, he stated that he has occasional incontinence and he has to wear adult diapers, on occasion. Further, in an August 2018 correspondence, he stated that his incontinence has returned and he is forced to wear an adult diaper to bed at night to keep from wetting himself. His lay statements are both competent and credible. Based on the evidence presented above, the Board finds that the Veteran’s predominant symptoms manifested before September 19, 2016, as urinary frequency with daytime voiding interval between two and three hours or the Veteran awoke to void two times per night. There is no showing of daytime voiding interval between one and two hours, or that the Veteran awakens to void three to four times per night. Additionally, prior to that date there was no evidence that the Veteran required absorbent materials. Therefore, the criteria for a 20 percent evaluation for urinary frequency are not met before September 19, 2016. As the evidence of record shows that the Veteran wears absorbent materials that are changed less than twice per day, a 20 percent rating is warranted, but no higher, effective September 19, 2016, the first time the evidence showed that the criteria were met. The criteria for a 40 percent evaluation for voiding dysfunction are not met since such a rating requires that absorbent materials be worn and changed between two to four times per day. The effective date of September 19, 2016 is appropriate because when examining all of the facts, it is not possible to ascertain from the medical and lay evidence of record the exact date that the Veteran began to use absorbent materials. September 19, 2016 is the first indication that absorbent materials were required. The Board acknowledges the Veteran’s contention that he is entitled to at least a 50 percent rating. The Veteran is competent to report his urinary dysfunction. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also finds the Veteran credible. However, the records do not show the Veteran’s disability requires the changing of absorbent material two to four times per day, that his daytime voiding interval is less than one hour, or; he awakens to void five or more times per night. Accordingly, the preponderance of the evidence is against an initial disability rating greater than 10 percent for residual radical prostatectomy before September 19, 2016, and greater than than 20 percent thereafter. 2. Erectile Dysfunction The Veteran asserts that he is entitled to a compensable rating for his service-connected ED. Since ED is not listed in the Rating Schedule, it is rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. As such, Diagnostic Code 7522 provides for a sole and maximum 20 percent rating for penile deformity with loss of erectile power. Additionally, 38 C.F.R. § 4.115b provides that entitlement to SMC for loss of an organ, under 38 C.F.R. § 3.350, which he has received. 38 C.F.R. § 4.115b (2018). The Board notes that as “deformity” is not defined in the rating criteria, the term is given its ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015). As such, per medical terminology, a “deformity” is a “distortion of any part or general disfigurement of the body.” Dorland’s Illustrated Medical Dictionary 478 (32 ed. 2012). A “deformity” under DC 7522, therefore, means either an internal or external distortion of the penis. Williams v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1037, *10. In support of his contention, he has provided the competent lay statement, in his Form 9, that because of his prostate cancer, he will never be able to have children again; since his prostate was taken out, he has not had sex with his wife; and his penis does not work anymore. As previously mentioned, the VA examination of August 2016 noted that the Veteran had ED, attributable to his prostatectomy. The examiner noted that the Veteran was unable to achieve an erection sufficient for penetration and ejaculation without medication. He, however, did not note that the Veteran had a penile deformity, either internally or externally, nor has the Veteran so contended. Based on the evidence presented above, the Board finds that the overall disability picture for the Veteran’s ED does not more closely approximate the 20 percent disability rating. The probative evidence of records does not show, nor does the Veteran so contend, having a penile deformity, either externally or internally. 38 C.F.R. § 4.7 (2018). Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. The Board considered all potentially applicable diagnostic codes per Schafrath, 1 Vet. App. at 589. However, the evidence does not show ED symptoms that could be rated higher under another diagnostic code. 38 C.F.R. § 4.115b. Since there is no evidentiary basis upon which to assign a compensable rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. Accordingly, a compensable disability rating for ED is not warranted. The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran’s claim, it is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 56. Lastly, the Board has jurisdiction to consider entitlement to a TDIU as part of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). However, the Veteran has not contended nor does the evidence show that his service-connected disabilities render him unemployable. Therefore, a TDIU is not for consideration in this case. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel