Citation Nr: 1817214	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  10-16 536	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial compensable disability rating for residuals of right inguinal hernia repair.  

2.  Entitlement to a separate initial disability rating for stress urinary incontinence prior to October 27, 2017, and a rating in excess of 40 percent from that date.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from October 2004 to February 2005 and from May 2006 to April 2007.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran perfected an appeal on this issue and, in his April 2010 substantive appeal, via a VA Form 9, he limited his appeal to the issues of entitlement to service connection for a temporomandibular joint (TMJ) arthralgia and an increased rating for residuals of right inguinal hernia repair, including stress urinary incontinence, and subsequently only provided testimony on these two issues in the May 2017 hearing before a member of the Board.

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board (video conference hearing) in May 2017.  A transcript of that hearing has been associated with the claims file.

This case was previously remanded by the Board in September 2017 for additional development.  

During the pendency of this appeal, service connection for temporomandibular joint (TMJ) arthralgia was granted by a November 2017 rating decision, thereby constituting a full grant of the benefits sought on appeal.  Thus, this issue is no longer in appellate status before the Board.  In the November 2017 rating decision, the RO also awarded a separate 40 percent rating for stress urinary incontinence, effective October 27, 2017.  Accordingly, the Board has separated the issue of increased rating for residuals of right inguinal hernia repair, including stress urinary incontinence, into two separate issues, as reflected on the title page.  
FINDING OF FACT

Throughout the duration of the appeal, the probative evidence of record indicates the Veteran's residuals of right inguinal hernia repair and stress urinary incontinence have been productive of urinary leakage with daytime voiding interval less than one hour; there is no probative evidence of urinary tract infection.  


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for residuals of right inguinal hernia repair have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code (DC) 7525 (2017).  

2.  The criteria for a separate initial disability rating of 40 percent prior to October 27, 2017 for stress urinary incontinence have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a, 4.115b, DC 7517 (2017).  

3.  The criteria for a separate initial disability rating in excess of 40 percent from October 27, 2017 for stress urinary incontinence have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a, 4.115b, DC 7517 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

The Veteran was provided notice letters pursuant to the Veterans Claims Assistance Act (VCAA) in September 2011 and May 2013.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible.  

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision.  There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable.  The Veteran has been accorded ample opportunity to present evidence and argument in support of this appeal.  See 38 C.F.R. § 3.103 (2017).

Analysis

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned.  See 38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods.  Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  

The Veteran's residuals of right inguinal hernia repair has been assigned an initial noncompensable (0 percent) disability rating under 38 C.F.R. §§ 4.115a, 4.115b, DC 7525 (2017).  DC 7525 provides ratings for chronic epididymo-orchitis, which is to be rated as a urinary tract infection.  The Veteran's stress urinary incontinence has been assigned an initial 40 percent disability rating under 38 C.F.R. §§ 4.115a, 4.115b, DC 7517.  DC 7517 provides ratings for injury of the bladder, which is to be rated as a voiding dysfunction.  

Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is rated under three subcategories of urine leakage, urinary frequency, or obstructive voiding.  Under the subcategory of voiding dysfunction, continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than two times per day merits a 20 percent disability rating.  When the absorbent materials must be changed two to four times per day, a 40 percent rating is warranted.  When the absorbent materials must be changed more than four times per day or an appliance is required, a 60 percent rating is warranted.  A 60 percent rating is the highest schedular rating for voiding dysfunction.  38 C.F.R. § 4.115a. 

Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating.  A daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating.  A daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a 40 percent rating.  38 C.F.R. § 4.115a.  

Obstructive voiding symptomatology with marked obstructive symptomatology with any one or combination of: post-void residuals greater than 150 cc, a markedly diminished peak flow rate of less than 10 cc/sec, recurrent urinary tract infections secondary to obstruction, or stricture disease requiring periodic dilation every two to three months, warrants a 10 percent rating.  Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating.  38 C.F.R. § 4.115a. 

Urinary tract infection where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management warrants a 30 percent rating.  38 C.F.R. § 4.115a.

At the time of the September 2017 Board decision, the increased rating issue before the Board was entitlement to an initial compensable rating for residuals of a right inguinal hernia repair, to include stress urinary incontinence.  In a November 2017 rating decision, the RO bifurcated this issue into two issues, and assigned a separate 40 percent disability rating for stress urinary incontinence, effective October 27, 2017, the date of the last VA examination.  In regard to both disabilities, the Veteran's primary symptom has been urinary leakage.  

The probative medical evidence of record, including the VA medical records and the April 2008, January 2010, December 2016 and October 2017 VA examinations, demonstrates that the Veteran's residuals of a right inguinal hernia repair and stress urinary incontinence are productive of urinary leakage with daytime voiding interval less than one hour.  There is no probative evidence of urinary tract infection.  VA medical records demonstrate complaints of urinary leakage dating as far back as October 2008.  Although the April 2008 VA examination and December 2016 did not note any findings of urinary leakage, the Veteran subsequently testified in the May 2017 VA examination that he has had continual symptoms of urinary leakage since his inguinal hernia repair surgery in 2007 and specific findings of voiding dysfunction at a time when he complained of urinary leakage were not addressed until the October 2017 VA examination.  Therefore, the Board finds that the Veteran's symptoms of urinary leakage warrant a 40 percent disability rating throughout the entire period of the appeal.  

Although an increased 40 percent rating is warranted prior to October 27, 2017, the preponderance of the evidence is against an evaluation exceeding 40 percent at any time throughout the duration of the appeal.  In this regard, a 60 percent disability rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed more than four times a day or an appliance is required.  38 C.F.R. § 4.115a.  In this case, although the Veteran reported he could not wear absorbent materials due to pain and he carried a container instead, he did not report that he required several containers or that his container must be used periodically during the day.  Therefore, an initial disability rating in excess of 40 percent for stress urinary incontinence is not warranted.  

Additionally, the preponderance of the evidence is against a compensable disability rating for residuals of right inguinal hernia repair.  In this case, DC 7525 requires the disability to be rated as a urinary tract infection.  The record is wholly absent of any findings of a urinary tract infection requiring hospitalization, long term drug therapy or intermittent intensive management.  Therefore, the probative evidence of record does not more nearly approximate the criteria for a compensable disability rating under DC 7525 at any time since the filing of the claim for an increased rating for residuals of right inguinal hernia repair.  38 C.F.R. §§ 4.3, 4.7.

The Board has considered the lay statements of record regarding the severity of the Veteran's residuals of right inguinal hernia repair and stress urinary incontinence and has relied on these reports in determining appropriate disability rating under the benefit-of-the-doubt doctrine.  38 C.F.R. §§ 4.3, 4.7 (2017).  The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999).  Where the Veteran has not discussed all particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

Accordingly, the Board concludes that the Veteran's residuals of right inguinal hernia repair does not warrant a compensable disability rating, stress urinary incontinence warrants an initial disability rating of 40 percent prior to October 27, 2017, but no higher, and stress urinary incontinence does not warrant an initial disability rating in excess of 40 percent at any time throughout the duration of the appeal.  38 C.F.R. §§ 3.102, 4.3, 4.7 (2017).  See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  

Extraschedular and Other Considerations 

The question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the claimant nor reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities.  Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016).

In this case, the Veteran has not asserted, and the evidence does not show that he is unemployable due to his service-connected residuals of right inguinal hernia repair and stress urinary incontinence.  Because there is no evidence of unemployability, further consideration of entitlement to total disability rating based on individual unemployability (TDIU) is not required.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 








							(Continued on the next page)

ORDER

An initial compensable disability rating for residuals of right inguinal hernia repair is denied.  

A separate initial disability rating of 40 percent prior to October 27, 2017 for stress incontinence is granted, subject to the law and regulations applicable to the payment of monetary benefits.  

A separate initial disability rating in excess of 40 percent from October 27, 2017 for stress urinary incontinence is denied.  




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs