Citation Nr: 20034273 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 17-47 389 DATE: May 15, 2020 ORDER Entitlement to an initial compensable rating for prostatectomy scars is denied. Entitlement to an increased rating for erectile dysfunction, currently rated 20 percent disabling is denied. Entitlement to an increased rating for prostate cancer residuals, currently rated 60 percent disabling, is denied. Entitlement to an effective date of December 16, 2012, but no earlier, for the award of a total disability rating due to individual unemployability (TDIU), is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran’s prostatectomy scars are not unstable or painful, do not affect an area of at least 39 cm (6 square inches), and do not cause functional impairment of the affected areas. 2. The Veteran is in receipt of the maximum schedular rating for erectile dysfunction and penis deformity, and there is no indication that he has symptomatology outside that listed in the rating criteria for erectile dysfunction. 3. The Veteran has not had any active prostate cancer during the period on appeal, and has not received any cancer treatment since his prostatectomy. 4. From December 16, 2012, a year prior to the date of the increased rating claim, the Veteran met the schedular criteria for a TDIU, and was unemployable due to service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for prostatectomy scars have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.118, DCs 7801-7805. 2. The criteria for an increased rating higher than 20 percent for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, DC 7522. 3. The criteria for an increased rating higher than 60 percent for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115a, 4.115b, DC 7528. 4. The criteria for an effective date of December 16, 2012, but no earlier, for the award of TDIU, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1-4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to September 1971, and December 1971 to November 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from April 2014 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) which, respectively, granted service connection for robotic prostatectomy scars, evaluating them as noncompensable, granted a rating increase for erectile dysfunction, evaluating it as 20 percent disabling, continued its 60 percent rating for prostate cancer; and among other things, granted a TDIU effective February 13, 2015. In September 2014, the Veteran filed his notice of disagreement with the ratings assigned for robotic prostatectomy scars, erectile dysfunction, and prostate cancer, and in August 2015 filed his notice of disagreement with, among one other thing, the effective date assigned for TDIU. In August 2017, the Veteran was issued his statements of the case, and in September 2017 perfected his appeal to the Board. On his September 2017 Form 9, the Veteran requested a videoconference hearing with a Veterans Law Judge which was scheduled for April 10, 2020. However, in a March 31, 2020 Memorandum of Law, the Veteran’s attorney withdrew the Veteran’s request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § § 20.704 (d). Increased Rating 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Prostatectomy scars The Veteran’s prostatectomy scars are currently rated noncompensable under DC 7805. The diagnostic codes 7801-7805 (for scars) were revised effective October 23, 2008. The regulatory changes pertaining to the rating of scars apply only to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As the Veteran’s application for an initial compensable rating was received after that date, the revised criteria are applicable. Under DC 7805, scars, including linear scars, and other effects of scars, are to be evaluated under DC 7800-7802 and 7804. In addition, any disabling effects not considered in a rating provided under DC 7800-7804 is to be evaluated under an appropriate diagnostic code. As a preliminary matter, the Board notes that the Veteran’s scars are located on his lower abdomen. As such, DC 7800 (scars of the head, face, or neck) is not applicable. Under DC 7801, scars of other than the head, face, or neck that are deep or cause limited motion warrant a 10 percent rating when involving an area or areas exceeding 6 square inches (39 sq. cm.); warrant a 20 percent rating when involving an area or areas exceeding 12 square inches (77 sq. cm.); warrant a 30 percent rating when involving an area or areas exceeding 72 square inches (465 sq. cm.); and warrant a 40 percent rating when involving an area or areas exceeding 144 square inches (929 sq. cm.). Under DC 7802, scars other than head, face, or neck that are superficial and that do not cause limited motion warrants a rating of 10 percent when involving an area of 144 square inches (929 sq. cm.) or greater. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. A March 2014 disability benefits questionnaire (DBQ) noted that the Veteran had scars related to his prostate cancer, but indicated that the scars were not painful or unstable, and the total area of all related scars was not greater than 39 square cm (6 square inches). The scar measurements were as follows: supraumbilical 5 cm x 0.07 cm; three other portal entries ¾ square cm each, one right para umbilical, one lower quadrant right, and one at left. A May 2015 DBQ noted scars which were not painful or unstable, and did not have a total area greater than 39 square cm (6 square inches). The DBQ indicated that the Veteran had a scar measuring 4 by 1 cm, and 4 scars measuring 2 x 0.5cm. The examiner noted that the Veteran’s prostate cancer impacted his ability to work as his moderate level of urinary incontinence interferes with his activities of daily living and sleeping. Based on the preponderance of the evidence, a compensable rating for the Veteran’s prostatectomy scars is not warranted. The March 2014 and May 2015 examiners noted that the Veteran’s scars are not painful or unstable, and did not cover a total area equal to or greater than 39 square cm. There was also no evidence that the scars cause limitation of function or other complications. The examiners provided the Veteran with a thorough examination prior to reporting their findings, thus the examination reports are afforded significant probative weight. The Veteran has not provided any additional evidence which would suggest that his scars are painful or unstable, exceed an area of 39 square cm, or cause limitation of motion. The symptomatology of the Veteran’s prostatectomy scars does not more nearly approximate symptomatology contemplated by a 10 percent disability rating, therefore a compensable rating is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Penis deformity The Veteran’s penis deformity is currently rated 20 percent disabling under DC 7599-7522. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using “99” for the last 2 digits. Id. Pursuant to DC 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this diagnostic code, and there are no other schedular criteria applicable to erectile dysfunction. November 2013 post-service treatment records note that the Veteran has residuals of radical robotic prostatectomy performed in April 2006 which resulted in penile erectile inability and urge/stress incontinence. A diagnosis of Peyronie’s disease was also noted. A March 2014 DBQ noted a diagnosis of prostate cancer with erectile dysfunction, and the Veteran reported erectile dysfunction indicating that he is not able to achieve an erection sufficient for penetration and ejaculation with or without medication. A May 2015 DBQ noted erectile dysfunction, and indicated the Veteran is not able to achieve an erection sufficient for penetration and ejaculation with or without medication. The Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). The Board has considered whether the Veteran should be awarded a higher rating under 38 C.F.R. § 4.115b, but finds that a higher rating is not warranted because no evidence, including the March 2014 and May 2015 DBQs, shows removal of half or more of the Veteran’s penis (30 percent under DC 7520), removal of both testes (30 percent under DC 7524), chronic epididymo-orchitis (DC 7525, which refers to 38 C.F.R. § 4.115a and would entitle a claimant to a 30 percent rating), or prostate gland injuries (DC 7527, which refers to 38 C.F.R. § 4.115 (a) and could entitle him to a rating in excess of 20 percent). As the Veteran is currently in receipt of the highest available rating under DC 7522 and the evidence of record does not indicate that referral for an extraschedular rating is warranted, further discussion as to whether the Veteran’s erectile dysfunction warrants a rating increase higher than 20 percent under DC 7522 is not necessary. Finally, the Note to 38 C.F.R. § 4.115b provides that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 should be considered. However, the Board observes that the Veteran is already in receipt of SMC based on loss of use of a creative organ. 3. Prostate cancer residuals The Veteran’s prostate cancer residuals are currently rated 60 percent disabling under DC 7528 which contemplates malignant neoplasms of the genitourinary system (i.e. prostate cancer). Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, Note. Here, the evidence of record, including as provided by the aforementioned DBQs, reflects that the Veteran has voiding and urinary problems, but there is no evidence of renal dysfunction. Thus, his prostate cancer residuals will be evaluated as voiding dysfunction. As applicable to this case, voiding dysfunction is rated as urine leakage, frequency, and obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 40 percent rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. For a rating based on urinary frequency, a 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. Id. For a rating based on obstructed voiding, urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post void residuals greater than 150cc; uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; stricture disease requiring periodic dilatation every 2 to 3 months. November 2013 post-service treatment records note that the Veteran has residuals of radical robotic prostatectomy performed in April 2006 which resulted in penile erectile inability and urge/stress incontinence. He also has a diagnosis of Peyronie’s disease. A March 2014 DBQ noted a diagnosis of prostate cancer with erectile dysfunction. The Veteran’s prostate cancer was noted as in remission with treatment completed, currently in watchful waiting status. The DBQ noted a voiding dysfunction which required absorbent material which must be changed more than 4 times per day, but did not require the use of an appliance. The voiding dysfunction caused a daytime voiding interval less than 1 hour, and nighttime awakening to void 5 or more times. The DBQ also noted that the voiding dysfunction caused signs or symptoms of obstructed voiding including slow or weak stream, decreased force of stream, but indicated that the stream was not markedly slow or weak, or markedly decreased. The Veteran was noted to not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran did report erectile dysfunction indicating that he is not able to achieve an erection sufficient for penetration and ejaculation with or without medication. No other residual conditions and/or complications due to prostate cancer, or treatment for prostate cancer were noted. The examiner reported that the Veteran’s prostate cancer impacted his ability to work as his urinary incontinence “proved too much to keep working.” A May 2015 DBQ noted a diagnosis of prostate cancer with robotic prostatectomy, but indicated the disease was in remission. The Veteran reported voiding dysfunction which required absorbent material which must be changed more than 4 times per day, did not report use of an appliance, noted increased urinary frequency with a daytime voiding interval between 1 and 2 hours, and nighttime awakening to void 3 to 4 times. The DBQ indicated that the voiding dysfunction caused signs and symptoms of obstructed voiding which included hesitancy which was not marked. The DBQ also noted erectile dysfunction, and indicated the Veteran is not able to achieve an erection sufficient for penetration and ejaculation with or without medication. The evidence of record reflects that for the entire period on appeal, the Veteran’s prostate cancer residuals more nearly approximate the criteria for a 60 percent rating for a voiding dysfunction. While the DBQs indicated that the Veteran’s prostate cancer residuals did not require use of an appliance, it did require absorbent material which needed to be changed more than 4 times a day, a daytime voiding interval less than 1 hour, and nighttime awakening to void 5 or more times. The 60 percent rating for a voiding dysfunction is the maximum schedular evaluation assignable. The above evidence reflects that the Veteran has not had any active prostate cancer during the claim period, and that he has not received any cancer treatment since his prostatectomy in 2006. Thus, a 100 percent rating under DC 7528 is not warranted at any time during the claim period, and an increased rating higher than 60 percent for the Veteran’s prostate cancer residuals is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette, 28 Vet. App. at 369-70. Earlier effective date 4. Entitlement to an earlier effective date for a TDIU The Veteran has been granted a TDIU from February 13, 2015, but the Veteran and his attorney contend that an earlier effective date of December 2012 is warranted as it is one year prior to the December 2013 claim for an increased rating for prostate cancer and Peyronie’s disease. The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (a). The corresponding VA regulation expresses this rule as “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (o)(1). For increased rating claims, if the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (stating that section 5110(b) (2), now section 5110(b)(3), requires that “an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim... to receive the benefit of an earlier effective date”). As noted, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for a higher rating is whether a TDIU as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this instance, the issue has been raised explicitly and by the evidence of record. To that end, while a TDIU has been granted from February 24, 2015, the issue of entitlement to a TDIU prior to that date, as part and parcel of the claim for an increased rating for prostate cancer residuals filed on December 5, 2013, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The fact that the Veteran filed a formal claim for TDIU on February 24, 2015 does not affect the determination that the issue of entitlement to a TDIU was part and parcel of the claim for an increased rating for prostate cancer filed on December 16, 2013. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. The question of whether the Veteran’s service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Entitlement to TDIU is based on an individual’s particular circumstance. Rice, 22 Vet. App. at 452. Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib, 733 F.3d at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Veteran is now in receipt of service connection for prostate cancer, evaluated as 60 percent disabling from December 1, 2009; maxillary sinusitis, evaluated as 30 percent disabling from August 12, 1997, and 50 percent disabling from November 5, 2015; bronchial asthma, evaluated as 30 percent disabling from June 14, 2017; left shoulder arthritis, evaluated as 100 percent disabling from March 22, 2013, and 20 percent disabling from October 1, 2013; erectile dysfunction, evaluated as 20 percent disabling from December 16, 2013; right shoulder arthritis, evaluated as 10 percent disabling from May 16, 2001, and 20 percent disabling from February 13, 2015; upper scalp scars, evaluated as 10 percent disabling from December 1, 1995; left wrist pain, evaluated as 10 percent disabling from October 19, 2011; allergic rhinitis, evaluated as 10 percent disabling from February 13, 2015; bilateral pterygium, hemorrhoids, right inguinal hernia, prostatitis, right forehead laceration scar, right buttock pilonidal cyst, prostatectomy scars, and left shoulder surgical scars, all evaluated as noncompensable. His combined rating from March 4, 2003 is at least 70 percent, with one disability ratable at 40 percent or more, thus the Veteran is eligible for consideration for a TDIU on a schedular basis from this date. See 38 C.F.R. § 4.16(a). On his February 2015 VA 21-8940 application for increased compensation based on unemployability, the Veteran indicated that he became too disabled to work in December 2011 due to his service connected prostate cancer residuals, sinusitis, Peyronie’s disease, and arthritis issues of the left and right shoulders and left wrist. The March 2014 examiner opined that the Veteran’s prostate cancer impacted his ability to work as his urinary incontinence “proved too much to keep working”, and the May 2015 examiner indicated that the Veteran’s moderate level of urinary incontinence interferes with his activities of daily living and sleeping. The Board concludes that an effective date of December 16, 2012, for the award of a TDIU is warranted. The evidence of record reveals that the Veteran’s prostate cancer residuals have precluded him from being able to secure and follow a substantially gainful occupation since December 2011. According to his VA 21-8940, the Veteran’s work history has been in the field of accounting and process auditing. The record reveals that the urinary incontinence due to his prostatectomy requires too much disruption during the day for the Veteran to effectively perform the duties expected of him in the workplace. His incontinence also prevents him from receiving an adequate amount of sleep due to having to constantly wake up during the night to relieve himself which would prevent him from having the focus and concentration at work necessary to adequately perform his job. Given the above, the evidence is in at least equipoise as to whether the Veteran’s service-connected prostate residuals have rendered him unable to secure or maintain substantially gainful employment throughout the pendency of his claim for an increased rating for service connected prostate residuals. While the Veteran’s construed claim for a TDIU is part and parcel of the claim for an increased rating for prostate cancer residuals which was received on December 16, 2013, the evidence shows that the criteria for a TDIU were met within the year prior to receipt of his claim. As discussed above, if such evidence shows that the criteria were met prior to receipt of the increased rating claim, the Board is permitted to assign an effective date up to one year prior to the receipt of the claim, if it was factually ascertainable that the increase occurred. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s service-connected prostate cancer residuals rendered him unable to obtain and maintain substantially gainful employment as of December 16, 2012. See Geib, 733 F.3d at 1354. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from December 16, 2012, one year prior to the date of claim for an increased rating for prostate cancer of which the issue of entitlement to a TDIU was part and parcel, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.