Citation Nr: 19124337 Decision Date: 04/02/19 Archive Date: 04/01/19 DOCKET NO. 17-05 049 DATE: April 2, 2019 ORDER Entitlement to an effective date earlier than August 21, 2011, for the assignment of a 10 percent disability rating for service-connected benign prostate enlargement is denied. Prior to June 2, 2014, entitlement to a rating in excess of 10 percent for service-connected benign prostate enlargement is denied. On and after June 2, 2014, entitlement to a rating in excess of 20 percent for service-connected benign prostate enlargement is denied. On and after November 10, 2009, entitlement to a rating in excess of 60 percent for service-connected periodic accelerated heart rate is denied. REMANDED Entitlement to a compensable rating prior to November 10, 2009, for periodic accelerated heart rate is remanded. FINDINGS OF FACT 1. An August 2011 report of examination documenting the Veteran’s symptoms of urinary frequency is construed as an informal claim for increased compensation for his service-connected benign prostate enlargement. 2. An increase in disability level for the Veteran’s benign prostate enlargement is not factually ascertainable within one year prior to receipt of the Veteran’s informal increased rating claim. 3. Prior to June 2, 2014, the Veteran’s benign prostate enlargement is manifested by, at worst, weak urinary stream and urinary frequency described as awakening to void two times per night. 4. On and after June 2, 2014, the Veteran’s benign prostate enlargement is manifested by, at worst, weak stream, hesitancy, and urinary frequency voiding interval between one and two hours and awakening to void two times per night. 5. On and after November 10, 2009, the Veteran’s periodic accelerated heart rate did not result in chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 21, 2011, for the assignment of a 10 percent rating for service-connected benign prostate enlargement have not been met. 38 U.S.C. § 1114 (l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. On and after November 10, 2009, the criteria for an increased disability rating in excess of 60 percent for service-connected periodic accelerated heart rate have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7007 (2018). 3. Prior to June 2, 2104, the criteria for a rating in excess of 10 percent for service-connected benign prostate enlargement have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§4.115a, 4.115b, Diagnostic Code 7527 (2018). 4. On and after June 2, 2014, the criteria for a rating in excess of 20 percent for service-connected benign prostate enlargement have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§4.115a, 4.115b, Diagnostic Code 7527 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to July 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and May 2015 rating decisions, respectively, by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board finds that the issue of entitlement to a total disability rating by reason of individual unemployability (TDIU) prior to March 1, 2010 is not on appeal. In June 2014, the Veteran filed a claim for TDIU, asserting that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran indicated that he last worked as a telecommunication technician in approximately February 2010. In a November 2016 rating decision, the RO awarded TDIU and assigned an effective date of March 1, 2010, i.e., the first day following the last month the Veteran was gainfully employed. Initially, although “a request for TDIU . . . is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation”, this is not for application here because the RO’s award of this issue constitutes a full award of benefits sought on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Harper v. Wilkie, No. 16-3519, 2018 U.S. App. Vet. Claims LEXIS 1618 (Vet. App. Dec. 6, 2018). The Veteran’s underlying periodic accelerated heart rate claim has been continuously adjudicated since June 2003. In comparison, the award of TDIU is effective March 1, 2010. As indicated, however, the Veteran indicated that he last worked as a telecommunication technician in approximately February 2010. A November 2014 private vocational opinion submitted by the Veteran similarly reflects the Veteran worked through February of 2010. Moreover, neither the Veteran nor his prior attorney alleged that the Veteran was unemployed prior to March 1, 2010, or that any employment was marginal employment or in a protected environment. Rather, on his application for TDIU benefits, the Veteran indicated his gross monthly income prior to March 1, 2010 was approximately $2,100.00, which exceeds the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. As such, the issue of entitlement to TDIU prior to March 1, 2010, will not be addressed in this decision. Furthermore, the Board finds that the issue of entitlement to an increased rating for irritable bowel syndrome (IBS) is also not on appeal. A May 2015 rating decision by the RO denied entitlement to a rating in excess of 10 percent for service-connected IBS. In July 2015, the Veteran timely filed a notice of disagreement with that decision, thereby placing this issue in appellate status. In November 2016, the RO issued a rating decision granting a 30 percent disability rating effective June 2, 2014, i.e., the date Veteran submitted an application for TDIU. In doing so, the RO noted that a 30 percent disability rating is the highest schedular evaluation allowed, and that a grant of such represents a grant a full grant of benefits sought on appeal. The Veteran received notice that his claim was granted and he did not dispute that finding; accordingly, the Board finds that the issue is not on appeal. Effective Date 1. Entitlement to an effective date earlier than August 21, 2011, for the assignment of a 10 percent rating for service-connected benign prostate enlargement Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. The prior regulations apply herein. Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Also prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition. Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). A March 2004 rating decision granted service connection for benign prostatic enlargement and assigned a zero percent evaluation, effective June 5, 2003. The Veteran appealed. In a November 2008 decision, the Board denied entitlement to an initial compensable rating for the Veteran’s service-connected benign prostate enlargement. The Veteran did not appeal. In August 2011, the Veteran was provided with a VA Gulf War examination related to his now service-connected fibromyalgia. The RO interpreted comments made therein as an informal claim for an increased evaluation for the benign prostate enlargement. See 38 C.F.R. § 3.157(b) (2012). In a May 2015 rating decision, the RO assigned an increased 10 percent disability rating effective August 21, 2011. The Veteran appealed that effective date. At the August 21, 2011 VA examination, the Veteran reported weak urinary stream and awakening to void, i.e., nocturia, two times per night. No communication or action prior to that time can be interpreted as requesting an increased evaluation or entitlement to such. See 38 C.F.R. §§ 3.1(p), 3.155(a); Servello, 3 Vet. App. at 198. Thus, under the general rule, no earlier effective date is warranted. Under the exception, an earlier effective date is warranted if a factually ascertainable increase is manifested one year prior. 38 C.F.R. § 3.400(o)(2). No records in the year prior to August 21, 2011 show an increase in disability. Prior to August 21, 2011, the Veteran’s service-connected benign prostate enlargement is rated as noncompensable under Diagnostic Code 7527. 38 C.F.R. § 4.115a, Diagnostic Code 7527. Under Diagnostic Code 7527, the rater is directed to rate prostate gland injuries, infections, hypertrophy, and post-operative residuals as voiding dysfunction or urinary tract infection, whichever is predominant. Id. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. Here, the first evidence of any urine leakage, frequency, or obstructed voiding is the Veteran’s reports of weak urinary stream and awakening to void two times per night documented in the August 2011 report of examination. The Board acknowledges that VA medical records dated in September 2008 and February 2010, respectively, reflect the Veteran denied any dysuria, urinary frequency, or nocturia. However, the record does not reflect (nor does the Veteran contend) that his symptoms manifested within the one-year period preceding the date of receipt of the claim. In the absence of such evidence, an increase in disability level is not factually ascertainable within one year prior to receipt of the Veteran’s increased rating claim. Therefore, the effective date of the increased 10 percent disability rating must be the date of claim for increased compensation, i.e., August 21, 2011. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than August 21, 2011, for increased 10 percent disability rating for benign prostate enlargement. Accordingly, the appeal is denied.   Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id.; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). For clarity, the rating criteria for each adjudicated issue will be discussed as applicable. 2. Prior to June 2, 2014, entitlement to a rating in excess of 10 percent, and on and after June 2, 2014, entitlement to a rating in excess of 20 percent for service-connected benign prostate enlargement The Veteran’s disability is currently rated under Diagnostic Code 7527. 38 C.F.R. § 4.115a, Diagnostic Code 7527. Under Diagnostic Code 7527, the rater is directed to rate prostate gland injuries, infections, hypertrophy, and post-operative residuals as voiding dysfunction or urinary tract infection, whichever is predominant. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. Voiding dysfunction is rated as follows: 20 percent is warranted where the evidence shows the condition requires the wearing of absorbent materials which must be changed less than 2 times per day; 40 percent is warranted where the evidence shows the condition requires the wearing of absorbent materials which must be changed 2 to 4 times per day; 60 percent is warranted where the evidence shows the condition requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. Urinary frequency is rated as follows: 10 percent is warranted where the evidence shows daytime voiding interval between two and three hours, or awakening to void two times per night; 20 percent is warranted where the evidence shows daytime voiding interval between one and two hours, or awakening to void three to four times per night; and a highest 40 percent is warranted where the evidence shows daytime voiding interval of less than one hour, or awakening to void five or more times per night. Obstructed voiding is rated as follows: a noncompensable rating is warranted where the evidence shows obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year; 10 percent is warranted where the evidence shows 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 2 to 3 months; and a highest 30 percent is warranted where the evidence shows urinary retention requiring intermittent or continuous catherization. In making this finding, the Board finds particularly persuasive the VA medical records of the Veteran’s ongoing treatment prior to June 2, 2014. For instance, an August 2011 report of examination reflects, the Veteran reported weak urinary stream and awakening to void, i.e., nocturia, two times per night. Similarly, VA medical records dated in September 2012 reflect the Veteran reported nocturia and decreased stream. At that time, the Veteran denied urgency, leaking, pain, frequent urinary tract infections, or kidney stones. VA medical records dated in April 2013 reflect the Veteran generally reported urinary frequency and awakening to void two times per night. Here, the record does not reflect, and the Veteran does not contend, that his condition requires the wearing of absorbent materials, awakening to void three to four times per night, or marked obstructive symptomatology. April 2013 VA medical records reflect the Veteran generally reported urinary frequency, however, there is no evidence as to the voiding intervals. As such, the Board finds that this evidence does not rise to the level of a higher disability rating prior to June 2, 2014. Next, the Board considers the issue of entitlement to an increased rating in excess of 20 percent as of June 2, 2014, for benign prostate enlargement. The Board finds particularly persuasive the VA medical records of the Veteran’s ongoing treatment as of June 2, 2014. VA examination dated in March 2015 reflect a history of some increased urinary frequency, weak stream, and hesitancy. At that time, the Veteran reported daytime voiding interval between one and two hours and awakening to void two times per night. Subsequent VA medical records do not reflect, and the Veteran has not contended, any change in the severity of the Veteran’s condition. Furthermore, the evidence does not show urinary retention requiring intermittent or continuous catherization, or requires either the wearing of absorbent materials, or a daytime voiding interval of less than one hour, or awakening to void five or more times per night. Rather, the record reflects daytime voiding interval between one and two hours and awakening to void two times per night. This does not more nearly approximate a higher rating of either 30 or 40 percent, but rather a lesser degree of impairment that is contemplated by the assigned 20 percent rating currently assigned. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating in excess of 20 percent disabling as of June 2, 2014, for benign prostate enlargement. In reaching these conclusions, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an increased rating in excess of 60 percent disabling from November 10, 2009, for service-connected periodic accelerated heart rate The Veteran’s disability is currently rated as 60 percent disabling under Diagnostic Code 7007, which contemplates heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A highest 100 percent rating is assigned where the evidence shows heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The Board accords significant probative weight to the VA examination provided in March 2015. In the October 2011 VA examination report, there were regular rhythm and heart sounds. The examiner noted an August 2011 EKG that was normal. Interview-based METS were estimated to be between 3 to 5 METS. The examiner found there was no congestive heart failure. Left ventricular ejection fraction was noted to be 50% based on a November 2009 echocardiogram report. In the March 2015 VA examination report, the Veteran reported periodic episodes of heart palpitations. The examiner noted a continued diagnosis of intermittent supraventricular arrhythmia. The Veteran reported more than four episodes in the past 12 months documented by Holter monitor. The examiner found there was no evidence of congestive heart failure. Further, the examiner noted a November 2009 echocardiogram which revealed a left ventricular ejection fraction of 50 percent. An interview-based METs test revealed a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, and dizziness. The examiner also noted the Veteran’s service-connected fibromyalgia contributes to the METs level exhibited. The examiner estimated a workload of greater than 5 METs but not greater than 7 METs due to periodic episodes of heart palpitations alone. These findings are consistent with VA medical records dated between January 2007 and August 2016. For instance, an electrocardiography was performed in August 2011 and found to be unremarkable. Similar findings were noted in July 2013. A highest 100 percent rating, therefore, is not for assignment as the evidence does not show chronic congestive heart failure, or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating in excess of 60 percent disabling as of November 10, 2011, for periodic accelerated heart rate. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating prior to November 10, 2009, for periodic accelerated heart rate is remanded. In July 2014, the RO implemented the Board’s February 2014 decision granting entitlement to service connection for periodic accelerated heart rate, and assigned an initial 60 percent disability rating effective November 10, 2009, i.e., the date entitlement arose. In November 2014, the Veteran timely filed a notice of disagreement (NOD) with the disability rating and effective date assigned, thereby placing this issue in appellate status. In November 2016, the RO issued a rating decision granting, in pertinent part, an earlier effective date of June 5, 2003, i.e., date of claim, and assigned an initial noncompensable disability rating. In doing so, the RO expanded the period on appeal. It reasonably follows that the dissatisfaction expressed by the Veteran as to the initial rating assigned in the July 2014 rating decision would extend to the subsequent determination of an initial noncompensable rating effective June 5, 2003. Clearly, the Veteran was seeking the highest rating possible for the entire appeal period. In November 2016, the RO issued a statement of the case (SOC) addressing the issue of entitlement to an increased rating in excess of 60 percent for periodic accelerated heart rate only. In light of the above, the Board finds that a remand is necessary for the issuance of an SOC addressing the issue of entitlement to an initial compensable rating prior to November 10, 2009, for periodic accelerated heart rate. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).   The matters are REMANDED for the following action: Issue a statement of the case to the Veteran addressing the issue of entitlement to increased compensation for periodic accelerated heart rate prior to November 10, 2009. Inform the Veteran of the time period in which to submit a timely substantive appeal as to those matters. If, and only if, the Veteran perfects his appeal, the AOJ should return the case to the Board, if otherwise in order. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel