Citation Nr: 20022035 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-19 781 DATE: March 30, 2020 ORDER Entitlement to a rating in excess of 40 percent for urinary incontinence, residual of prostate cancer, is denied. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable rating for dysuria, residual of prostate cancer, is remanded. Entitlement to a compensable rating for abdominale scars, residuals of prostate cancer, is remanded. FINDING OF FACT During the period on appeal, the Veteran had to change absorbent materials at least two times, but no more than four times, daily due to residuals of prostate cancer. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for urinary incontinence, residual of prostate cancer, have not been met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to June 1969, including service in the Republic of Vietnam during the Vietnam Era. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. As an initial matter, the Board notes that the Veteran was granted service connection for prostate cancer in a November 2012 rating decision. Following a prostatectomy, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s condition as “prostate cancer to include incontinence and dysuria (claimed as pain during urination) with scar,” and assigned a rating based on the symptomatology associated with the Veteran’s urinary incontinence. See November 2014 Rating Decision. In other words, the Veteran was service connected for the residuals of his prostate cancer, to include incontinence, dysuria, and scar. It is well established that separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board finds that each of the identified residuals are distinct, that their respective symptomatology is not duplicative, and, as such, separate ratings are warranted for each of the disabilities identified in the November 2012 rating decision. Additionally, the Board notes that the Veteran has contended that the severity of his service-connected erectile dysfunction warrants compensation. See April 2016 VA Form 21-0958; April 2017 VA Form 9. However, to date, the Veteran has not filed a claim seeking an increased rating for his condition, nor has VA provided him with the appropriate forms to file such a claim. See 38 U.S.C. § 5103. As claims must be addressed by the AOJ in the first instance, the Veteran’s potential claim of entitlement to an increased rating for erectile dysfunction is referred back to the AOJ for development and adjudication in accordance with the applicable procedural requirements. The Board also notes that, in an April 2014 VA examination, the examiner identified a hernia as a residual of the Veteran’s prostate cancer. See April 2014 Prostate Cancer Disability Benefits Questionnaire (DBQ). However, there are no claims for additional residuals of prostate cancer to be service connected before the Board. Therefore, if the Veteran believes he has residuals of prostate cancer not accounted for by the current ratings, he is encouraged to file claims for those disabilities. Entitlement to a rating in excess of 40 percent for urinary incontinence, residual of prostate cancer, is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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, the assignment of staged ratings may be warranted where the evidence contains factual findings that demonstrate a change in the severity of symptoms during the course of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Under 38 C.F.R. § 4.115a, a 20 percent rating for urinary incontinence is warranted when the disability requires the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted when the disability requires the wearing of absorbent materials which must be changed two to four times per day. A rating of 60 percent is warranted when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Factual and Procedural History. In a November 2012 VA rating decision, the Veteran was granted service connection for prostate cancer, and awarded a rating of 100 percent. Following a prostatectomy, the Veteran underwent a VA examination, in which the examiner identified urinary incontinence as a residual of said prostatectomy. The examiner noted that the Veteran’s incontinence required absorbent material which must be changed less than two times per day, created a daytime voiding interval of less than one hour, and caused the Veteran to awaken to void two times per night. See March 2013 Prostate Cancer DBQ. In a March 2013 VA rating decision, based on the March 2013 examination, the AOJ proposed reducing the rating for the Veteran’s prostate cancer from 100 percent to 40 percent. In a September 2013 VA rating decision, the rating for the Veteran’s prostate cancer was decreased to 40 percent, effective January 1, 2014. In November 2013, the Veteran requested a reconsideration. The Veteran asserted that his residuals from prostate cancer included painful urination, incontinence, side pain, painful scars, and hernia. See November 22, 2013 VA Form 21-0820; November 25, 2013 VA Form 21-0820. The Veteran underwent a VA examination in April 2014, in which the examiner again identified urinary incontinence as a residual of his prostatectomy. The examiner noted that the Veteran’s incontinence required absorbent material that must be changed less than two times per day. The examiner further noted that use of an appliance was not required, and that the incontinence did not cause increased urinary frequency or signs or symptoms of obstructed voiding. See April 2014 Prostate Cancer DBQ. In a May 2014 VA rating decision, based on the April 2014 evaluation, the AOJ proposed reducing the rating for the Veteran’s condition from 40 percent to 20 percent. The AOJ also recharacterized the Veteran’s condition, without discussion, as “prostate cancer to include incontinence and dysuria (claims as pain during urination) with scar.” In July 2014, the Veteran asserted that his absorbent materials had to be changed two times per day, sometimes three. See July 2014 Veteran’s Statement. In support of his assertion, the Veteran submitted a statement from his private physician, noting that the Veteran changed his absorbent materials at least two times per day. See July 2014 Private Physician Statement. In a July 2015 VA rating decision, the Veteran’s rating of 40 percent was continued based on urinary incontinence requiring the use of absorbent materials which must be changed two to four times per day. Thereafter, in April 2016, the Veteran submitted a Notice of Disagreement (NOD) as to the rating assigned. The claim was subsequently perfected and is the claim currently before the Board. In a January 2020 Board hearing, the Veteran testified that he is currently changing his absorbent materials three times per day. The Veteran also asserted that he experiences urgency in urination, as well as low urine volume. See January 2020 Board Hearing Transcript. Analysis. Upon review of the Veteran’s entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 40 percent at any time during the appeal period. As discussed above, the Veteran is currently rated at 40 percent for his urinary incontinence throughout the appeal period. As such, to warrant an increased rating, the evidence must show that the Veteran’s symptoms more nearly approximated a rating of 60 percent at some point during the appeal period. See 28 C.F.R. § 4.7. A 60 percent rating is assigned when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. To date, at no point has the Veteran reported, nor has the Veteran’s symptomatology been noted as including, the use of an appliance or the changing of absorbent materials more than four times per day. Indeed, in his January 2020 Board hearing, the Veteran competently and credibly testified that his urinary incontinence results in the wearing of absorbent materials which must be changed two to three times per day. Further weighing against a 60 percent rating is a statement from Veteran’s private physician, asserting that the Veteran’s urinary incontinence requires the wearing of absorbent materials, which the Veteran changes at least two times per day. See July 2014 Private Physician Statement. As the evidence of record is silent as to any indication or assertion that the Veteran’s urinary incontinence has, at any point in the appeal period, required the use of an appliance or the changing of absorbent materials more than four time per day, the Board finds that the preponderance of the evidence weighs against a rating in excess of 40 percent at any time during the appeal period. Lastly, the Board notes that urinary frequency allows for a maximum 40 percent rating, and obstructed voiding and urinary tract infection both allow for a maximum 30 percent rating. As such, rating the Veteran under such criteria would not assist the Veteran here, given the Veteran’s current 40 percent rating throughout the appeal period. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for PTSD is remanded. The Board has reviewed the record and finds that a remand is warranted to allow the AOJ to conduct further development. First, a remand is warranted as the evidence indicates that there may be relevant VA records not associated with the claims file. In the January 2020 Board hearing, the Veteran asserted that he had received VA treatment for his PTSD within the past 12 months. However, while VA records through January 2019 have been associated with the electronic claims file, the last mental health treatment of record is from November 2018. See New Orleans VA Medical Center (VAMC) records, received January 2019 in CAPRI. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, the Veteran has asserted that the severity of his PTSD has worsened since his last examination in September 2014. Specifically, the Veteran contends that he suffers from depression, which is aggravated by his service-connected residuals of prostate cancer, including erectile dysfunction. See April 2016 VA Form 21-0958; April 2017 VA Form 9; January 2020 Board Hearing Transcript. Therefore, based on the Veteran’s assertions as to the increase in severity of his service-connected PTSD, the Board finds that a new VA examination is needed to ascertain the current severity and manifestations of this disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to a compensable rating for dysuria, residual of prostate cancer, is remanded. The Board has reviewed the record and finds that a remand is warranted for a VA medical examination and opinion. As discussed above, when the Veteran was originally granted service connection for his dysuria, the condition was included with, and rated under, urinary incontinence. See November 2014 Rating Decision. It is well established that separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, supra. Though the record indicates that the Veteran experiences dysuria and that the dysuria is a residual of this prostate cancer, the record is silent as to etiology or nature of the dysuria. In other words, though dysuria is noted, the medical records do not indicate the severity, frequency, or duration of the dysuria, nor do they indicate the cause of the dysuria aside from identifying that it is a residual of prostate cancer. As there is insufficient evidence within the record to decide regarding a disability rating for the Veteran’s dysuria, a remand is necessary to determine the nature and etiology thereof. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159, 19.9 (2018); see also McLendon v. Nicholson, 20 Vet. App. 70 (2006). 3. Entitlement to a compensable rating for abdominale scars, residuals of prostate cancer, is remanded. The Board has reviewed the record and finds that a remand is warranted for a VA examination and opinion. In April 2014, the Veteran underwent a VA examination regarding the nature of his claimed abdominale scars, residuals of prostate cancer. Though the examiner noted that the scars impacted the Veteran’s ability to work, they did not elaborate. See April 2014 VA Scars/Disfigurement DBQ. Likewise, the Veteran’s VA treatment records are silent regarding the severity and functional impact of his abdominale scars. See New Orleans VAMC records. As there is insufficient evidence within the record to make a decision regarding a disability rating for the Veteran’s abdominale scars, a remand is necessary to determine the nature thereof. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159, 19.9 (2018); see also McLendon v. Nicholson, 20 Vet. App. 70 (2006). In sum, a remand is warranted to allow the AOJ to obtain the Veteran’s VA records and to afford the Veteran with examinations regarding his service-connected PTSD, dysuria, and abdominal scars. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, ensure that any VA records from January 2019 to current are obtained and associated with the electronic claims file. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documents in the electronic claims file, and the Veteran must be informed if any records are unable to be secured. 2. AFTER COMPLETING THE ABOVE, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current severity of his service-connected PTSD. The examiner should review the entire claims file, and any indicated studies should be performed. The examiner is asked to: (a.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE FREQUENCY, SEVERITY, AND DURATION OF SYMPTOMS. The examiner must address the Veteran’s contention that he experiences symptoms of depression, and that such depression is aggravated by his service-connected prostate cancer and the residuals thereof. (b.) Identify, to the extent possible, any social or occupational impairment due to his service-connected psychiatric disorder alone. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. AFTER COMPLETING THE DEVELOPMENT OUTLINED IN SECTION 1, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician, preferably a urologist, to ascertain the nature and etiology of the Veteran’s service-connected dysuria. The examiner should review the entire claims file, and any indicated studies should be performed. The examiner is asked to: (a.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE FREQUENCY, SEVERITY, AND DURATION OF SYMPTOMS. To ensure the Veteran’s condition is rated correctly, the examiner is asked to opine as to the etiology, or underlying cause, of the Veteran’s dysuria. (b.) Identify, to the extent possible, any social or occupational impairment due to his service-connected dysuria alone. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. AFTER COMPLETING THE DEVELOPMENT OUTLINED IN SECTION 1, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current severity of the Veteran’s service-connected abdominale scars. The examiner should review the entire claims file, and any indicated studies should be performed. The examiner is asked to: (a.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE FREQUENCY, SEVERITY, AND DURATION OF SYMPTOMS. (b.) Identify, to the extent possible, any social or occupational impairment due to his service-connected abdominale scars alone. The examiner is asked to address the April 2014 VA examiner’s determination that the Veteran’s abdominal scars impact the Veteran’s ability to work. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate 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.