Citation Nr: 21000205 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-32 767 DATE: January 4, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected chronic cystitis to include urinary tract infections is denied. REMANDED Entitlement to a total disability rating based on individual unemployability, to include on an extraschedular basis, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s bladder disorder manifested symptoms of urinary retention requiring continuous catheterization; evidence of urine leakage or urinary frequency requiring the use of an appliance or wearing of absorbent materials is not shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for chronic cystitis to include urinary tract infections are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, Diagnostic Code (DC) 7512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to August 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. These matters were previously remanded by the Board in February 2020 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Under Rice v. Shinseki, the Board has jurisdiction over a total disability rating based on individual unemployability (TDIU) claim as part and parcel of the Veteran’s increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disability should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disorders is duplicative or overlapping with the symptomatology of the other disorder. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation 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. Entitlement to a disability rating in excess of 30 percent for service-connected chronic cystitis to include urinary tract infections The Veteran contends that her service-connected bladder disorder warrants a rating higher than the currently assigned 30 percent disability rating. The Veteran’s chronic cystitis is rated under DC 7512, which instructs that the disability should be rated as a voiding dysfunction. See 38 C.F.R. § 4.115b, DC 7512. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Only the predominant area of dysfunction is considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. For urinary frequency, the rating schedule provides a 10 percent rating for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating applies for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent rating applies for a daytime voiding interval of less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For urinary leakage, the rating schedule provides a 20 percent rating for disability requiring the wearing of absorbent materials which must be changed less than two times per day. Where the disability requires the wearing of absorbent materials which must be changed two-to-four times a day, a 40 percent rating is warranted. A 60 percent rating is warranted for disability 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 obstructed voiding, a maximum 30 percent rating may be assigned for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. The Veteran was afforded a May 2015 VA examination in which the examiner indicated the Veteran has urinary reflux causing signs or symptoms of obstructed voiding. The Veteran reported urinary retention and self-catheterization with each void. The examiner noted no urine leakage and no increased urinary frequency. The Veteran testified in the January 2020 hearing that she has to self-catheterize at least six times per day and is on a daily antibiotic to prevent infections. The Veteran further testified that she does not use any pads for urine leakage but she experiences bladder contractions and that she changes her undergarments one to two times per day due to urine droplets that are dark orange from the use of pyridium to stop the bladder contractions. She indicated that she does not experience urine leakage or increased frequency and that she gets kidney stones. In May 2020, a VA examination based on Acceptable Clinical Evidence (ACE) was performed due to safety concerns to avoid harm to the Veteran in light of the COVID-19 pandemic. The examiner indicated she has a voiding dysfunction which requires continuous catheterization. He stated she has obstructed voiding signs and symptoms of markedly slow stream, markedly weak stream, markedly decreased force of stream, recurrent urinary tract infections secondary to obstruction and post-void residuals greater than 150 cc. The examiner indicated she has a history of urethral calculi requiring invansive or non-invasivce procedures zero to one time per year and recurrent symptomatic urethral or bladder infections requiring long-term drug therapy and continuous intensive management. The examiner noted no urine leakage and no increased urinary frequency. A review of the Veteran’s private and VA medical treatment records shows that the Veteran’s bladder disorder causes urinary retention and continuous catheterization. There is no evidence showing that her bladder disorder causes urine leakage or increased urinary frequency. Private medical treatment records show the Veteran was consistently negative for urine leakage, nocturia, urgency, dysuria, hematuria and frequency throughout the period on appeal. Her VA treatment records show the Veteran occassionally complained of increased urinary frequency. See, e.g., March 2020 and April 2018 VA Treatment Records. However, the Board finds that the probative and persuasive evidence does not indicate that there is urinary frequency rising to the level of being the predominant area of dysfunction to be considered for rating purposes rather than her urinary retention and continuous catheterization. As noted, the Veteran’s symptoms are contemplated by the criteria set forth for obstructed voiding. Nonetheless, the Board also acknowledges that the Veteran indicated that she frequently has urinary tract infections. In this regard, the Board points out that even when considering this provision, the assignment of a higher rating is not warranted. A 30 percent raing is the highest rating available for urinary tract infections. 38 C.F.R. § 4.14. Additionally, the Board acknowledges the numerous lay statements of record describing the Veteran’s symptoms and how her disability affects her life. However, the Board notes that the Veteran’s disability picture is contemplated by the currently assigned 30 percent rating. 38 C.F.R. § 4.1. As noted, the record does not show that the Veteran wears absorbent materials that must be changed 2 to 4 times per day or that she experiences urinary frequency productive of daytime voiding interval less than one hour or awakening to void five or more times per night. Moreover, the Veteran has not asserted such either. After a careful review of the evidence, including the two VA examinations of record, the Board determines that an increased rating is not warranted during the appeal period. A rating in excess of 30 percent is not warranted under 38 C.F.R. § 4.115a, as the Veteran’s bladder disorder causes urinary retention and continuous catheterization. This is the maximum rating under obstructed voiding, which is the predominant disability throughout the course of the appeal. For the foregoing reasons, the preponderance of the evidence is against a rating for the bladder disorder in excess of 30 percent. The Board finds the benefit of the doubt doctrine is not applicable and higher ratings are not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND Entitlement to a TDIU, to include on an extraschedular basis A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis by the Director of Compensation Service, when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation Service is so warranted for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Veteran contends that her service-connected bladder disability precludes her from obtaining and maintaining substantially gainful employment. The Veteran’s only service-connected disability is chronic cystitis to include urinary tract infections, which was assigned a 10 percent disability rating prior to March 3, 2010 and 30 percent thereafter. Her combined disability rating was 10 percent prior to March 3, 2010 and 30 percent thereafter. Thus, the schedular criteria for TDIU have not been met at any time during the period on appeal. The record shows that the Veteran reported she quit her job partially due to urinary symptoms. See May 2010 Statement in Support of Claim. The Veteran reported that she works part-time as a middle school teacher and that schedule allows her to self-catheterize before she leaves for work and when she returns from work, but when there are weekly staff meetings, parent meetings or special programs, she must bring a set of items to sanitize the location to self-catheterize. See January 2013 Notice of Disagreement. The Veteran reported that she is employed part-time about 20 hours per week, works approximately eight minutes from home, goes home to self-catheterize and that she does not know how she would work full time. See May 2015 VA Examination Report. The Veteran’s reports thus indicate that her bladder disability may make it difficult to work a full day or a 40-hour week. Thus, the Board finds that the Veteran may be unable to secure and follow a substantially gainful occupation due to her service-connected disability and that there is sufficient evidence to warrant referral for consideration by the Director of Compensation Service of the appropriateness of the assignment of an extraschedular TDIU under 38 C.F.R. § 4.16(b). Although the Board sincerely regrets the additional delay caused by a remand, the Board is precluded from assigning an extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16(a). In so remanding, the Board also notes that its referral of this claim for extraschedular consideration under § 4.16(b) is simply a factual finding that does not bind the Board or require the Board to award an extraschedular rating should the claim be returned to the Board. Ray v. Wilkie, 31 Vet. App. 58 (2019). The matters are REMANDED for the following action: 1. Refer the case to the Director of Compensation Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.