Citation Nr: 19124804 Decision Date: 04/03/19 Archive Date: 04/02/19 DOCKET NO. 16-43 067 DATE: April 3, 2019 ORDER Entitlement to an initial disability rating in excess of 20 percent prior to September 26, 2011, and in excess of 60 percent thereafter, for service-connected urethral stricture is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is remanded. FINDINGS OF FACT 1. Prior to September 26, 2011, the Veteran’s service-connected urethral stricture did not require the use of an appliance or wearing of absorbent materials which must be changed two to four times per day. 2. On and after September 26, 2011, the Veteran is in receipt of the maximum 60 percent rating for his service-connected urethral stricture. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected urethral stricture prior to September 26, 2011 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.115b, Diagnostic Code 7518 (2018). 2. The criteria for a disability rating in excess of 60 percent for service-connected urethral stricture on and after September 26, 2011 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.115b, Diagnostic Code 7518 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to September 1984. He served in the United States Army. 1. Entitlement to an initial disability rating in excess of 20 percent prior to September 26, 2011, and in excess of 60 percent thereafter, for service-connected urethral stricture 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 evaluations shall be applied, the higher evaluation 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). When reasonable doubt arises as to the degree of disability, such doubt 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. Fenderson, 12 Vet. App. at 126; 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). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran’s urethral stricture has been rated under Diagnostic Code 7518. The diagnostic criteria indicate that the condition is to be rated as voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7518 (2018). Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. For urinary leakage, a 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than two times per day. 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. 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. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent evaluation is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night warrants. A 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, a noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. 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 2 to 3 months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. In a June 2010 VA record, the Veteran denied a history of frequent urination and night-time urination. A July 2010 VA treatment records showed that the Veteran complained of recurrent urethral stricture and voiding dysfunction with reports of decreased urinary stream associated with recurrent UTIs and dysuria. The note also showed that the Veteran had a history of multiple DVIUs and urethral dilatations. At the time, the Veteran was unemployed, and his usual occupation was roofing. In a September 2010 VA Surgery Attending Pre-Operative E&M note, the Veteran complained of slow FOS and long emptying time and dysuria. An October 2010 VA examination was conducted. The examiner diagnosed recurrent urethral stricture. The Veteran reported urinary symptoms to include hesitancy/difficulty starting stream, weak or intermittent stream, dysuria, dribbling, straining to urinate, hematuria, and urine retention. The Veteran reported day frequency to be one to two hours, and nocturia to include voiding four times per night. The examiner noted a history of obstructed voiding, with four urinary tract infections (UTIs) within the past 12 months and one dilation per year due to stricture. During the examination, the Veteran reported that he was unemployed because of his many medical conditions. The examiner found that there were mild effects on daily activities, including traveling and toileting. A November 2011 VA examination was conducted. The examiner diagnosed urethral stricture disease. The Veteran reported that he has done self-dilations since October 2010. The examiner found that the Veteran had voiding dysfunction, and the Veteran stated that his condition had worsened in the past one year, including decreased stream, spraying, urgency and frequency. The Veteran’s voiding dysfunction also caused urine leakage which required the use of absorbent materials which must be changed two to four times per day. The examiner also noted that the Veteran required the use of an appliance, specifically pads daily. The Veteran’s voiding dysfunction also increased urinary frequency, including daytime voiding interval between one and two hours, and nighttime awakening to void three to four times. Also present during the examination were signs and symptoms of obstructed voiding, including, hesitancy, slow or weak stream, decreased force of stream, urinary retention requiring intermittent catheterization, and self-dilations every other day. The examiner concluded that the Veteran’s condition did not impact his ability to work. A September 2013 VA examination was conducted. The Veteran reported that he has done self-dilations since 2010 and was instructed by his doctors to perform one every other day. The Veteran reported that he continued to struggle with decreased stream, spraying, urgency, and frequency. The examiner found that the Veteran had voiding dysfunction, causing him urine leakage which required the use of absorbent materials which must be changed two to four times per day. The examiner stated that the Veteran did not require the use of an appliance, but that his condition did increase the Veteran’s urinary frequency, causing him to nighttime awaken to void three to four times. Also present during the examination were signs and symptoms of obstructed voiding, including, hesitancy, slow or weak stream, decreased force of stream, and stricture disease requiring dilatation which he was instructed to perform every other day, but he chooses to do twice a week. The examiner determined that the Veteran’s bladder condition impacted his ability to work and restated the Veteran’s complaint that he could not work because they complain he was in the bathroom too much. However, the examiner opined that the Veteran’s condition did not present any functional limitations and should not preclude light duty physical or sedentary employment. The examiner stated that the Veteran’s frequent use of the bathroom would require his employer to allow frequent use of bathroom facilities within reasonable proximity of the Veteran’s workspace, but that there was no objective evidence to preclude light duty physical or sedentary gainful employment. First, the Board finds that an increased evaluation is not warranted prior to September 26, 2011. The evidence does not show urinary leakage requiring the wearing of absorbent materials, which must be changed two to four times per day, daytime voiding interval less than one hour, awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization. See 38 C.F.R. § 4.115a. The VA treatment records showed decreased urinary stream. Daytime frequency was 1 to 2 hours and nighttime voiding was 4 times per night. There was no wearing of absorbent materials or catheterization. Accordingly, an increased evaluation is not for assignment. Second, the Board finds that an increased evaluation is not warranted on and after September 26, 2011. The Veteran is already in receipt of the highest evaluation for the service-connected disability. There is no higher evaluation permitted for this disability. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b) (20120; 38 C.F.R. §§ 3.102, 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, higher initial disability ratings for urethral stricture, evaluated as voiding dysfunction, is denied. 38 C.F.R. § 4.115b, Diagnostic Code 7518. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16 (a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration of all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educations and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Veteran alleges that his service-connected urethral stricture, prevents him from securing or following any substantially gainful employment. As of September 26, 2011, the Veteran meets the schedular criteria for TDIU as he is service-connected for one disability that is rated at 60 percent disabling. Prior to that date, the criteria are not met. VA examination reports from October 2010, November 2011, and September 2013 all indicate that the Veteran’s service-connected urethral stricture did not impact his ability to work. Specifically, the September 2013 VA examiner acknowledged the Veteran’s self-reported impact on his ability to work, but the examiner went on to state that the Veteran’s condition does not present any functional limitations and should not preclude light duty physical or sedentary gainful employment. However, subsequent to the September 2013 VA examination, in a November 2013 VA primary care note, the Veteran’s treatment provider stated that due to the Veteran’s periodic dilatations, incontinence, use of condom catheter, pads, and need to take frequent bathroom breaks, the Veteran could not work. The examiner stated that because of urethral stricture, with urinary incontinence, it was the examiner’s opinion that the condition caused a lot of inconvenience and interruptions if the Veteran were to work and that most employers would not be willing to employ the Veteran partly because of this. In an October 2016 substantive appeal, the Veteran stated that his urethral stricture had worsened and that it had made it impossible for him to hold gainful employment, especially when his diapers need to be changed. The Veteran further stated that he is not qualified to perform any other trades or skills necessary for full time employment. In a December 2018 VA primary care note, the Veteran reported urinary hesitancy, frequency, urinary frequency, and incontinence. The Veteran also identified as having a history of urethral stricture and had dilatations, all of which made work difficult. In a December 2018 correspondence, the Veteran asserted that he had attempted to work in various positions, but all his efforts have failed because of his service-connected urethral stricture. The Veteran reported that the resulting incontinence forces him to stop roughly every hour to empty his bladder, but that sometimes he does not empty his bladder completely and will need to relieve himself again 15-20 minutes later. The Veteran stated that it was hard working around others because he smells like urine, even when he wears a diaper. The Veteran stated that his usual occupation was a roofer, and that because of his constant use of the bathroom, his coworkers complained that he was not pulling his load, was ridiculed, and was falsely accused. Given that the last VA examination for service-connected urethral stricture was conducted over five years ago, and additional lay and medical evidence has been submitted since that time addressing the issue of employability, a new examination is warranted. At no point has the Veteran’s claim been referred to the Director, Compensation Services for consideration of assignment of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). Under the facts of this case, the Board finds that referral to the Director is warranted. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After all other requested development has been completed, provide the Veteran with an appropriate examination to be conducted with respect to his TDIU claim, to include an examination that addresses the current severity of the Veteran’s service-connected urethral stricture. The claims file should be made available for the examiner to review, and the examination report should reflect that such review was accomplished. The relevant Disability Benefits Questionnaire must be utilized. The examiner must also address all effects on employment, to include beginning in 2010. 4. After all other requested development has been completed, refer the claim of entitlement to TDIU to the Director, Compensation Service, for consideration of whether TDIU on an extraschedular basis is warranted prior to September 26, 2011, the period during which the Veteran did not meet the schedular criteria for a TDIU. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel