Citation Nr: 20005216 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 13-25 340A DATE: January 23, 2020 ORDER Entitlement to a 20 percent disability rating, but no higher, for prostatitis, prior to January 31, 2018, is granted. Entitlement to a 40 percent disability rating for prostatitis, from January 31, 2018 to May 15, 2019, is granted. Entitlement to a rating in excess of 40 percent for prostatitis, since May 16, 2019, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Prior to January 31, 2018, the Veteran’s prostatitis manifested as increased urinary frequency, with awakening to void up to three times per night. 2. From January 31, 2018, the Veteran’s prostatitis resulted in a voiding dysfunction requiring the wearing of absorbent materials that must be changed two-to-four times per day; but at no time since then has the Veteran’s prostatitis resulted in requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. Prior to January 31, 2018, the criteria for a 20 percent disability rating, but no higher, for prostatitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.115a, 4115b, Diagnostic Code (DC) 7527. 2. Between January 31, 2018 and May 15, 2019, the criteria for a 40 percent disability rating, but no higher, for prostatitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, DC 7527. 3. Since May 16, 2019, the criteria for a rating in excess of 40 percent for service-connected prostatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.115a, 4.115b, DC 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to April 1970. The Veteran testified before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing was prepared and added to the record. This case was previously before the Board in April 2018 when the claims listed above were remanded for further development. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran claims the current ratings do not accurately reflect his condition during those time periods. During the period on appeal, in a July 2019 rating decision, the Veteran’s noncompensable prostatitis was increased to 40 percent, effective May 16, 2019. The effective date corresponds to a VA examination. As the Board will note in more detail below, the Veteran testimony at his January 31, 2018 BVA hearing regarding his prostatitis symptomatology was most consistent with a 40 percent rating. As such, the Board will essentially change the effective date of the 40 percent rating to January 31, 2018. Additionally, the Board finds that an increased rating is also warranted prior to January 31, 2018. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, postoperative residuals, should be rated as either voiding dysfunction or urinary tract infections, whichever is more predominant. 38 C.F.R. § 4.115b. In accordance with 38 C.F.R.§ 4.115a, a 10 percent rating for urinary tract infection (UTI) is warranted when the disability requires long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal function due to urinary tract infection is to be rated as renal dysfunction. Further, under 38 C.F.R.§ 4.115a, voiding dysfunction should be rated as either frequency, obstructed voiding, or urine leakage. A 10 percent rating for urinary frequency 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 a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 10 percent rating for voiding dysfunction (obstructed voiding) is warranted for 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. 4. Stricture disease requiring periodic dilatation every 2 to 3 months. Id. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterizations. Id. A 20 percent rating for a voiding dysfunction (urine leakage) is warranted for requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. Id. 1. Entitlement to a compensable rating for prostatitis prior to January 31, 2018. The Veteran asserts that a compensable rating is warranted for his service-connected prostatitis prior to January 31, 2018. At a September 2009 VA examination the Veteran reported nocturia two to three times a night with some decrease in force and caliber of urinary stream, with some history of urinary tract infection. He was diagnosed with chronic prostatitis, currently asymptomatic. At a June 2017 VA treatment visit, the Veteran reported increased nocturia and he was requesting something to treat his symptomatology. As discussed above, prostate gland injuries are rated as either voiding dysfunction or urinary tract infections, whichever is more predominant. In the present case, the probative medical evidence does not demonstrate urinary tract infections requiring long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. See 38 C.F.R. § 4.115a. Therefore, the Board determines that the Veteran’s symptoms of voiding dysfunction are more predominant. After review of the Veteran’s medical records, the Board determines the most probative medical evidence of record establishes the required criteria for a compensable disability rating of 20 percent due to increased urinary frequency, prior to January 31, 2018. Nevertheless, the evidence during this time period does not reflect that the Veteran was using absorbent materials or suffering from urinary retention requiring intermittent or continuous catheterization. As such, a rating in excess of 20 percent is not warranted prior to January 31, 2018. 2. Entitlement to an increased rating for prostatitis beginning January 31, 2018. During his Board hearing on January 31, 2018, the Veteran competently and credibly testified that his urinary frequency results in the wearing of absorbent materials which must be changed 2 to 4 times a day. Although he admitted he had not discussed this with his treating practitioners, this assertion was further confirmed at his May 2019 VA examination. In the VA examination report the VA examiner noted that the Veteran’s disability resulted in voiding dysfunction which caused urine leakage and required absorbent material which must be changed 2 to 4 times per day. The VA examiner noted that the voiding dysfunction did not require the use of an appliance. This evidence is most consistent with a 40 percent rating. Accordingly, the Board will assign a 40 percent rating from January 31, 2018. The Board has considered whether an even higher rating of 60 percent is warranted as a result of the Veteran’s urinary leakage. However, at no point during the appellate period has the Veteran been required to use an appliance or the wearing of absorbent materials that needed to be changed more than four times per day. As decided above, the Board resolved any reasonable doubt in finding that the Veteran required the wearing of absorbent materials that needed to be changed two-to-four times per day, at most. Lastly, obstructed voiding and UTI both allow for a maximum 30 percent rating, which does not assist the Veteran in this case, given the Board’s grant of a 40 percent rating herein (for the period between January 31, 2018 and May 15, 2019). In sum, for the period on appeal prior to January 31, 2018 a rating of 20 percent for the Veteran’s prostatitis is awarded. Also, between January 31, 2018 and May 15, 2019 the Board finds that a 40 percent disability rating is warranted for the Veteran’s prostatitis. However, the Board finds that a rating in excess of 40 percent is not warranted at any time since January 31, 2018. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to PTSD, is remanded. The Veteran’s claim for service connection for hypertension was most recently remanded by the Board in April 2018 to afford him a VA examination and opinion. The Veteran underwent a May 2019 VA examination. The Board finds that the opinions obtained are not adequate. The VA examiner did not adequately address whether the Veteran’s service-connected PTSD aggravated (worsened) his claimed hypertension disability. 38 C.F.R. § 3.310(b). Instead, the examiner provided an opinion on aggravation of a condition that existed prior to service, which is not applicable in this case. The Board thus finds a new opinion should be obtained. Because the May 2019 VA examiner did not follow the remand instructions in their entirety, the examination report must be returned to the examiner, or a similarly qualified medical professional, for correction. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The matters are REMANDED for the following action: 1. Forward the Veteran’s claims folder to an examiner for addendum opinions regarding his hypertension. The examiner is requested to review the claims folder, to include this remand. Following review of the claims file the examiner must provide opinions on the following: a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s hypertension is caused by his now service-connected PTSD. b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s hypertension is aggravated by his now service-connected PTSD. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.