Citation Nr: 18158870 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-53 926 DATE: December 18, 2018 ORDER A compensable evaluation for the residuals of lung cancer, status post resection of the left lobe of the lungs, is denied. A compensable evaluation for surgical scar associated with lung resection is denied. A compensable evaluation for erectile dysfunction is denied. An effective date later than January 1, 2016, for the reduction of the 100 percent evaluation for residuals of a radical prostatectomy, is denied. An evaluation in excess of 40 percent for residuals of a radical prostatectomy beginning January 1, 2016, until April 12, 2018, is denied. An evaluation of 60 percent for residuals of a radical prostatectomy, beginning April 13, 2018, is granted. A higher level of special monthly compensation for loss of use of a creative organ is denied. REMANDED Service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of left lobe lung cancer manifest as, at worst, Forced Expiratory Volume (FEV-1) of 85 percent predicted; the ratio of Forced Expiratory Volume to Forced Vital Capacity (FEV-1/FVC) of 123 percent predicted, and; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 98 percent predicted. It has not manifest diminished maximum exercise capacity; right ventricular hypertrophy; pulmonary hypertension; episodes of acute respiratory failure; or requirement of outpatient oxygen therapy. 2. A surgical scar from left lung cancer lobe resection is not unstable, painful, or greater than or equal to 39 square centimeters. 3. The Veteran's erectile dysfunction disability is manifested by loss of erectile power, but not by penile deformity. 4. The discontinuance of the 100 percent evaluation for prostate cancer is not a formal rating reduction in this case, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code 7528. 5. The procedural requirements of 38 C.F.R. § 3.105 (e) were properly and appropriately completed in this case. 6. Following January 1, 2016, the Veteran did not receive any surgical, x-ray, or antineoplastic chemotherapy; had any continued active malignancy of his genitourinary system; or, had any local recurrence or metastasis of his prostate cancer. 7. From January 1, 2016 to April 12, 2018, the Veteran’s residuals of prostate cancer manifest as urinary frequency and urine leakage requiring the wearing of absorbent material which needed to be changed no more than four times per day. 8. Beginning April 12, 2018, the Veteran’s residuals of prostate cancer manifest as urinary frequency and urine leakage requiring the wearing of absorbent material which needed to be changed more than four times per day. 9. The Veteran is in receipt of special monthly compensation on the basis of loss of use of creative organ. He is not housebound or in need of aid and attendance. CONCLUSIONS OF LAW 1. The criteria are not met to establish an initial compensable rating for left lung cancer, status post left upper lobectomy. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6844 (2017). 2. The criteria for a compensable evaluation for a scar related to a left lung lobectomy have not been satisfied. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7805 (2017). 3. The criteria for a compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.115b, Diagnostic Code 7522 (2017). 4. The discontinuance of the 100 percent evaluation for residuals of prostate cancer effective January 1, 2016, was proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 4.1, 4.7, 4.115b, Diagnostic Code 7528 (2017). 5. From January 1, 2016, to April 12, 2018, the criteria for entitlement to a disability rating in excess of 40 percent for the residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 6. Beginning April 12, 2018, the criteria for entitlement to a disability rating of 60 percent for the residuals of prostate cancer have been met. 38 U.S.C. §§ 1155, (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). 7. The criteria for a higher-level award of special monthly compensation due to loss of creative organ have not been met. 38 U.S.C. §§ 1114 (k), 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.400, 3.350(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012, February 2015, and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). After the last RO adjudications of the case in September 2016 and June 2017, new evidence was associated with the claims folder. In April 2018, the Veteran submitted a waiver of the Veteran’s right to have this evidence initially considered by the RO. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2017). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, in the September 2016 Notice of Disagreement, the Veteran stated that he was disagreeing with VA’s failure to award benefits at the 100 percent rate due to total unemployability. No details were provided as to the Veteran’s unemployability. In December 2016, VA sent the Veteran information about how to file a TDIU claim and instructed the Veteran to file an Application for Increased Compensation Based on Unemployability. The Veteran did not complete and submit this application. The Board has little to no evidence on which to evaluate this claim. Given the Veteran’s lack of response to the December 2016 correspondence, the Board deems the Veteran’s assertion of entitlement to a TDIU to be abandoned. It has not otherwise been raised by the record. Accordingly, the TDIU claim is not before the Board as a component of his claim for an increased evaluation. Id. The Board notes that this decision encompasses the evaluation of the residuals of the radical prostatectomy appealed in October 2018. The Veteran’s October 2018 notice of disagreement to the October 2017 rating decision is part and parcel to the previous notice of disagreement appealing the issue of the evaluation of prostate cancer, which was already on appeal at the time of his October 2018 notice of disagreement. VA’s Duties to Notify and Assist VA’s duty to notify was satisfied by a June 2012 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA’s duty to assist has been fulfilled through obtaining VA and private outpatient medical records. The Veteran has undergone VA examinations for rating purposes several times between 2011 and 2017, the examinations being fully responsive to the rating criteria. See 38 C.F.R. § 4.1 (for application of the VA rating schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition). The examination reports show a review of the history, and the Veteran’s statements regarding the claim, as well as, where applicable, clinical testing (i.e. pulmonary function testing). In a June 2015 statement, the Veteran noted that, with respect to the residuals of his prostate disorder, the Veteran was not asked certain questions by the examiner with respect to his urination frequency. In his statement, the Veteran provided the information he would have provided to the examiner, had he been asked. Accordingly, there is no prejudice to the Veteran in adjudicating the appeal, and otherwise, the Veteran has been provided adequate medical examinations in conjunction with his claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran did not request a Board hearing in this matter. There is no indication of further relevant evidence or information to obtain. The Board will proceed to a decision. Increased Rating 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 (2017). 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 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. A compensable evaluation for the residuals of lung cancer, status post resection of the left lobe. The Veteran submitted his claim for an increased rating for his lung disability in May 2012. The Veteran’s service-connected left lung disorder is rated under 38 C.F.R. § 4.97, Diagnostic Code 6844 for post-surgical residual condition (lobectomy, pneumonectomy, etc.), which is then evaluated in accordance with a General Rating Formula for Restrictive Lung Disease. According to that rating formula, a 10 percent evaluation is warranted when there is an FEV-1 of 71 to 80 percent of predicted value, a ratio of FEV- 1/FVC of 71 to 80 percent, or a DLCO (SB) of 66 to 80 percent predicted. A 30 percent evaluation is warranted when there is an FEV-1 of 56 to 70 percent predicted, an FEV- 1/FVC of 56 to 70 percent, or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation is warranted when there is an FEV-1 of 40 to 55 percent predicted, an FEV-1/FVC of 40 to 55 percent, or a DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Lastly, a 100 percent evaluation is warranted when there is evidence of at least one of the following: an FEV-1 of less than 40 percent predicted, an FEV-1/FVC of less than 40 percent, a DLCO (SB) of less than 40 percent predicted, a maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, or the Veteran requires outpatient oxygen therapy. 38 C.F.R. § 4.97. Under VA law, in every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96 (d)(3). When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different PFT FEV-1 and FVC, so that the level of evaluation would be different depending on which test result is used, the test result is used that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d)(6). Medical history shows the Veteran underwent a left upper lobe lobectomy in August 2008. The Veteran underwent August 2011 and July 2012 VA examinations. At the August 2011 examination, the Veteran reported noticing a little “decrease in breathing” when he exerts himself. The August 2011 PFT indicated as follows, pre-bronchodilator: FVC 88 percent predicted value; FEV-1 103 percent predicted; FEV-1/FVC 117 percent predicted; DLCO 101 percent corrected for “hgb.” Post-bronchodilator results were: FVC 90 percent predicted; FEV-1 110 percent predicted; FEV-1/FVC 123 percent predicted. The examiner’s impression was these were normal pulmonary function test results. The examiner remarked that there was no objective evidence of active disease. At the July 2012 VA examination, the Veteran reported experiencing shortness of breath at rest and with any exertion. He reported that repeat routine chest imaging has been normal. The July 2012 PFT shows as follows, pre-bronchodilator: FVC 68 percent predicted value; FEV-1 80 percent predicted; FEV-1/FVC 118 percent predicted; DLCO 98 percent predicted. Post-bronchodilator results were: FVC 65 percent predicted; FEV-1 85 percent predicted; FEV-1/FVC 132 percent predicted. The examiner’s impression was there was a mild restrictive defect likely as a result of obesity. Private treatment records for July 2012 show a 4 mm ground glass opacity in the left mid lung. VA treatment records for June 2015 show the Veteran’s periodic checks for lung cancer have been negative. The record notes what the Board construes to be “abnormal” lung sounds on the left, which were deemed normal given the lung resection. Reviewing the foregoing, the Board must deny this claim, and continue the existing noncompensable initial rating for a left lung disability. At worst, post-bronchodilator test results showed FEV-1 was 85 percent predicted and FEV-1/FVC was 123 percent predicted. Post-bronchodilator test results were used because they are the default, unless they are worse than the pre-bronchodilator results. Post-bronchodilator test results here are not worse than pre-bronchodilator test results. Additionally, DLCO was at worst 98 percent predicted. These results do not meet or more nearly approximate the criteria for a compensable evaluation. No other evidence indicates a compensable evaluation is warranted. The functional effect of the ground glass opacity noted in the July 2012 treatment record is accounted for in the Veteran’s PFTs for July 2012. The subsequent treatment records give no indication that the opacity is the recurrence of active disease. 2. A compensable evaluation for the scar associated with the left lobectomy. The Veteran seeks a compensable evaluation for the scar associated with his left lung lobectomy. His scar is evaluated under Diagnostic Code 7805. Diagnostic Code 7804 contemplates scars that are unstable or painful. A 10 percent disability rating is assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. A higher 20 percent rating is assigned with three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, an additional 10 percent is to be added to the evaluation based on the total number of unstable or painful scars. Id. at Note 2. Diagnostic Code 7805 provides that other scars (including linear scars), not otherwise rated under Diagnostic Codes 7800-7804, in addition to the other effects of scars which are otherwise rated under Diagnostic Codes 7800-7804, are also to be rated based on any disabling effects not provided for by Diagnostic Codes 7800-7804. This includes, where applicable, diagnostic codes pertaining to limitation of function. 38 C.F.R. § 4.118. Both the August 2011 and July 2012 VA examinations report on the examination of the Veteran’s surgical scar associated with the left lung lobectomy. The reports describe the scar as a well healed left thoracotomy scar, not painful and/or unstable with a total area is less than 39 square centimeters. There is no evidence contradicting these examination reports. The Veteran has not described any disabling effects of the thoracotomy scar and the evidence does not so indicate. Accordingly, the criteria for a compensable evaluation have not been met or more nearly approximated. 3. A compensable evaluation for erectile dysfunction. The Veteran seeks a compensable evaluation for his erectile dysfunction. He reports that he has totally lost erectile function. See June 2015 correspondence. The Veteran’s disability has been evaluated as noncompensable under Diagnostic Code 7599-7522. The 7599 Diagnostic Code indicates erectile dysfunction has been rated by analogy under Diagnostic Code 7522, which represents an unlisted genitourinary disability evaluated by penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Diagnostic Code 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power. This is the only schedular rating provided under this diagnostic code. When evaluating a disability under Diagnostic Code 7522, both external deformity and internal deformity must be considered. Williams v. Wilkie, 30 Vet. App. 134 (2018). A June 2015 VA examination showed the Veteran is unable to achieve an erection sufficient for penetration and ejaculation even with medication. The examiner stated that there were no other pertinent physical findings, complications, conditions, symptoms, or signs. There was no indication of internal or external deformity. Treatment records do not indicate internal or external deformity. Other than the Veteran’s competent, credible report of loss of erectile power, he does not describe a penile deformity. Against the claim, records from the prostatectomy state that “neurovascular bundles appeared to be intact” and there “were no signs of injury to adjacent organs.” See September 2014 private treatment record. Private treatment records of a urology procedure in August 2015 find no anatomic abnormalities. Based on a review of the evidence, the Board finds that a compensable evaluation for erectile dysfunction is not warranted. There is insufficient evidence to show that an internal or external deformity of the penis is present or more nearly approximated. 4. Propriety of the reduction of the 100 percent evaluation for residuals of a radical prostatectomy, effective January 1, 2016. The Veteran’s prostate cancer residuals were initially evaluated as 100 percent disabling from October 29, 2014, until January 1, 2016, due to the Veteran’s prostate cancer diagnosis with active malignancy. Since January 1, 2016, the Veteran’s prostate cancer residuals have has been rated as 40 percent disabling based on voiding dysfunction. In September 2016, the Veteran disagreed with the evaluation of prostate cancer, which the Board interprets as a disagreement with the reduction from the initial rating of 100 percent, as well as disagreement with the resulting 40 percent evaluation. The Veteran’s 100 percent and 40 percent evaluations were assigned under Diagnostic Code 7528, malignant neoplasms of the genitourinary system, which assigns a 100 percent for active malignancy and then assigns an evaluation for residuals following active malignancy under the appropriate criteria based on whichever genitourinary dysfunction predominates. A note after Diagnostic Code 7528 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). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, such as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Under 38 C.F.R. § 3.105 (e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 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 does not find that these provisions are applicable in the present case. This is because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 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 the present case, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system contains a temporal element that has been met. Consequently, the provisions of 38 C.F.R. §§ 3.343 and 3.344, with respect to rating reductions and terminations of 100 percent ratings, are not applicable in this case. In short, the rating reduction in this case was procedural in nature and by operation of law. The Board only has to determine if the procedural requirements of 38 C.F.R. § 3.105 (e) were met and if the reduction was by operation of law under Diagnostic Code 7528. As discussed further below, the Board finds that the procedural requirements were properly followed in this case and the “reduction” was by operation of law under Diagnostic Code 7528 in this case. The Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105 (e). Specifically, the Veteran’s radical prostatectomy took place in September 2014. More than six months later, in June 2015, the Veteran underwent a VA examination of his prostate cancer residuals. In a June 2015 rating decision, the Veteran’s 100 percent evaluation for that disability was proposed to be reduced to 20 percent on the basis of that examination. For clarity, the 20 percent evaluation was later increased to 40 percent. As to the June 2015 proposed rating reduction, a June 2015 notice letter informed the Veteran of his rights, including to a predetermination hearing and to submit additional evidence. Although the Veteran objected that there was no “detailed explanation” in the notice letter, see July 2015 correspondence, the Board notes that the June 2015 rating decision was the detailed explanation. The notice letter indicates that the Rating Decision was enclosed in the letter. The Board finds the Veteran’s statement that a detailed explanation was not in the notice letter is insufficient to rebut the presumption of regularity associated with the mailing of the Rating Decision and the letter. See Butler v. Principi, 244 F.3d 1337, 1340 (2001); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (“‘clear evidence to the contrary’ is required to rebut the presumption of regularity, i.e., the presumption that the notice was sent in the regular course of government action.”). The AOJ finalized the discontinuance of the Veteran’s 100 percent evaluation for prostate cancer residuals in an October 2015 rating decision and effectuated the reduction to 20 percent, effective January 1, 2016. The effective date of the reduction, January 1, 2016, was effective on the last day of the month after expiration of the 60-day period from the date of notice of the October 2015 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for discontinuing the Veteran’s 100 percent evaluation for his prostate cancer residuals was appropriately and adequately completed in this case per 38 C.F.R. § 3.105 (e). In considering the evidence of record under the laws and regulations as set forth above, the Board also concludes there that is no evidentiary basis for continuance of the 100 percent rating for prostate cancer under Diagnostic Code 7528 after January 1, 2016. See 38 C.F.R. § 4.7. He is no longer receiving treatment, which is the requirement for a 100 percent disability rating. 5. Evaluation of the residuals of prostate cancer, rated as 40 percent beginning January 1, 2016. In light of the foregoing, which discusses the background and Diagnostic Codes associated with the prostate cancer evaluation, the Board will proceed to adjudicate whether a rating in excess of 40 percent is warranted from January 1, 2016. As noted above, the disability is rated as a voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is warranted. When there is leakage requiring the wearing of absorbent materials which must be changed two to four times per day, a 40 percent disability rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent rating contemplates daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 10 percent rating contemplates daytime voiding interval between two and three hours, or awakening to void two times per night. 38 C.F.R. § 4.115a. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. 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 two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 38 C.F.R. § 4.115a. In this case, for the period beginning January 1, 2016, the June 2015 VA examination is relevant. The examination showed that the Veteran has a voiding dysfunction that results in stress incontinence and urine leakage. Urine leakage requires absorbent materials which must be changed less than two times per day. Daytime voiding interval was between one and two hours. At nighttime, the Veteran awakens to void two times. The voiding dysfunction was also reported to cause symptoms of obstructed voiding, namely hesitancy. A scar was present that was absent pain and instability and was not greater than 39 square centimeters. The Veteran supplemented this information in his July 2015 correspondence. Therein, he stated that he was not asked about the number of times he voids during the day, which he reported was nine to 10 times. He clarified that he wears absorbent material around the clock and changes them three to four times per day. An August 2015 treatment note reports daily voiding of 14 times and nightly voiding of one time. The Veteran submitted an April 2018 statement, further describing his symptoms. He reported urination three to four times per hour; and changing absorbent materials four to six times per day. He reported that leakage is embarrassing due to the odor, and that he has anxiety about potential leaks. He reported voiding one to two times at night. Because of nightly awakenings, he asserted he has fatigue, difficulty concentrating and irritability during the day. In April 2018, the Veteran also submitted a document entitled “Independent VA Rating Evaluation Regarding Residuals of Prostate Cancer Status Post Radical Prostatectomy,” prepared by a medical professional. This evaluation provided no new evidence, nor did it provide a medical opinion. Rather, it provided an opinion as to what the Veteran’s disability evaluation should be given the existing facts of the case. As the Board’s function is to determine the disability evaluation independently, the Board treats this correspondence as argument, rather than evidence. Based on the evidence of record, the Board finds that prior to April 13, 2018, an evaluation in excess of 40 percent is not warranted. Beginning April 13, 2018, an evaluation of 60 percent is granted. The Veteran is in receipt of the maximum evaluation under the urinary frequency and obstructed voiding criteria. Therefore, the Board examines whether the 60 percent evaluation under the urine leakage criteria is met. Prior to April 13, 2018, the Veteran’s statements showed that in the worst case, he changed his absorbent material three to four times per day. This is consistent with the criteria for a 40 percent evaluation and no more. It was not until April 13, 2018, that VA received new evidence indicating the frequency of changing the absorbent materials had increased to four to six times per day. Based on this new evidence, the Board finds that at that point, the disorder more nearly approximates a 60 percent evaluation. The Board finds against a 60 percent evaluation for the entire appeal period because the Veteran’s statements made earlier in the appeal period are more credible as they relate to that period. 6. Entitlement to a higher level of special monthly compensation based on loss of use of a creative organ. The Veteran seeks a higher level of special monthly compensation for his erectile dysfunction. The Veteran is currently in receipt of special monthly compensation (SMC) based on loss of use of a creative organ. SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114 (k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114 (k) (2012), 38 C.F.R. § 3.350 (a) (2017). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017), Note 1. VA policy is to pay SMC for loss of use of a creative organ whenever a service-connected disease causes loss of erectile power. It must initially be established; however, that the loss of erectile dysfunction is a manifestation of a service-connected disease or injury. There is no higher rate of SMC available for loss of use of creative organ. Other bases for the award of SMC are available, such as with the need for aid and attendance or housebound status. The medical and lay evidence does not indicate that the Veteran meets these criteria. REASONS FOR REMAND 1. Service connection for obstructive sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of service connection for obstructive sleep apnea because no VA examiner has opined whether the Veteran’s service-connected lung disorder aggravates his obstructive sleep apnea. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). The matters are REMANDED for the following action: 1. Direct the claims file to the examiner who provided the June 2017 VA medical opinion on obstructive sleep apnea so that he may provide an addendum opinion regarding the Veteran’s obstructive sleep apnea. If that examiner is no longer available, provide the claims file to a qualified clinician. A new examination of the Veteran is only necessary if deemed so by the clinician. The examiner must determine whether the Veteran’s obstructive sleep apnea is at least as likely as not aggravated beyond its natural progression by the service-connected lung disability The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   2. Readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel