Citation Nr: 21002982 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-37 796 DATE: January 19, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a disability rating in excess of 60 percent for residuals of prostate adenocarcinoma is denied. FINDINGS OF FACT 1. The Veteran’s posttraumatic stress disorder results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran’s residuals of prostate adenocarcinoma result in voiding dysfunction but not in renal dysfunction and there has been no metastasis or local reoccurrence. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2020).   2. The criteria for a rating in excess of 60 percent for residuals of prostate adenocarcinoma have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115(a), 4.115(b) Diagnostic Code 7528 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1968 to March 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In June 2019, the Board remanded the Veteran’s appeals to the RO for further evidentiary development. Subsequently, a July 2020 rating decision granted entitlement to individual unemployability (TDIU). As this constitutes a full grant of the benefit sought on appeal in regard to total disability based on individual unemployability, there remains no issue of controversy for adjudication by the Board on that claim. See Grantham v. Brown, 114 F.3d 1156, 115859 (Fed. Cir. 1997). On remand, the RO also increased the Veteran’s rating for posttraumatic stress disorder (PTSD) to 70 percent throughout the period on appeal. As the increased rating is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has characterized the issue accordingly.   Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a disability rating in excess of 70 percent for PTSD The Veteran argues that his PTSD warrants a rating greater than the currently assigned 70 percent. PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provide the following criteria: A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Turning to the evidence, the Veteran underwent a VA examination for PTSD in June 2012. The examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation. The Veteran reported having good relationships with his wife, daughter, and granddaughter. He reported going to restaurants once every two months on average. He reported experiencing sleep impairment with nightmares involving war. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted the Veteran’s irritability and difficulty getting along with others and fatigue related to lack of sleep, sleep difficulties partly related to PTSD and partly to nocturia. In VA treatment records dated September 2012, the Veteran reported that he had suicidal thoughts during bad days but denied any plan or intent. The VA treatment records note that the Veteran had no past suicidal behaviors, no family history of suicide or attempt, and assessed the Veteran as a low risk for suicide. The Veteran’s treating VA psychiatrist wrote in February 2015 that the Veteran has a diagnosis of PTSD and depression not otherwise specified. He said that the Veteran is compliant with his treatment, but his symptoms remained chronic and impaired his daily functioning. The symptoms included irritability, memory loss, poor sleep, depression, and other symptoms. The psychiatrist’s opinion was that the Veteran’s PTSD made him unemployable. In written argument filed in September 2017, the Veteran’s representative stated that the Veteran reported that side effects of his PTSD medications have made it very difficult for him to work as a carpenter. In February 2019, the Veteran testified before the Board. The Veteran said that his treatment records showed suicidal ideation since 2012, and the Veteran reported having suicidal thoughts as well as thoughts of harming others. The Veteran testified that he had put his wife through emotional problems but that she continues to stay with him. The Veteran also reported anger leading to difficulty working, and said that he last worked in 2007, and said that he had not held a job for more than six months since returning from Vietnam. He also testified that his children do not want to be around him due to his PTSD symptoms. On December 2019 VA examination, the examiner concluded that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner stated that the Veteran reported that although he and his wife have some problems, they are still together and are trying to cope. The Veteran reported mainly staying to himself and rarely visiting his brothers and sisters who live in the area. The Veteran reported that he had stopped working about 11 years ago due to mental health issues. The Veteran reported continuing anxiety, depression, insomnia and intrusive thoughts about his Vietnam experiences. The Veteran reported taking prescription sertraline for his symptoms and attending group therapy sessions and seeing his VA psychiatrist regularly. The Veteran said that he once overdosed with pills about a year ago but woke up and did not die. The Veteran reported daily passive suicidal ideations with no plan or intent. He had no legal issues and he has stopped drinking for the previous six months and is in treatment for drinking. The examiner noted symptoms of depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and suicidal ideation. The Veteran appeared very subdued with a highly constricted affect. His speech was very soft and often difficult to understand. He appeared cognitively intact and severely depressed and was cooperative but had some psychomotor retardation. The examiner stated that the Veteran’s suicidal ideations were passive and that he did not have suicidal intent at the time of the examination. The examiner indicated that the Veteran’s symptoms interfered seriously with his ability to focus on work and to get along in the workplace, which would lead to more errors at work. The examiner stated that the Veteran’s symptoms interfered with his motivation and energy to pursue tasks and that his difficulty with relationships would impair his ability to work as part of team or for someone else, which would lead to conflict. The June 2012 VA examiner stated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which would call for a 30 percent rating, and the December 2019 VA examiner concluded that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, which fits squarely within the criteria for a 70 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130. During the period on appeal, the Veteran has showed symptoms correlating with a 30 percent rating, such as depressed mood; anxiety; chronic sleep impairment; symptoms typical of a 50 percent rating such as a constricted affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships; symptoms associated with a 70 percent rating such as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Considering the severity, frequency, and duration of the Veteran’s symptoms, the Board finds that the Veteran’s PTSD has not resulted in total occupational and social impairment as contemplated by a 100 percent rating. There has been no evidence of symptoms associated with a 100 percent rating, such as gross impairment of thought process or communication, persistent delusions or hallucinations; grossly inappropriate behavior, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any other symptoms of similar frequency, severity, or duration. In July 2020, the RO found that the Veteran’s PTSD resulted in total occupational impairment and granted TDIU due to his service-connected PTSD. But concerning social impairment, the evidence indicates that the Veteran is currently married and living with his wife, although the relationship has difficulties. However, the Veteran indicated as recently as December 2019 that they were trying to cope. Although the December 2019 VA examination does not mention his relationships with his daughter and granddaughter, during the June 2012 VA examination, the Veteran reported having good relationships with them. The Veteran reported that he visits his siblings rarely, but that he still maintains contact with them. Although the Veteran reported irritability in examinations, he was appropriately dressed and groomed. The frequency, duration, and severity of his symptoms do not more nearly approximate total social impairment. The examinations and VA treatment records indicate that the Veteran has reported suicidal ideations since 2012. In 2014, 2015, and 2016, the Veteran reported aborted suicide attempts. In November 2015 the Veteran stated that he “took extra pills” approximately five months earlier, and he also stated this in August 2015. In October 2018 the Veteran reported having thoughts of deliberately taking an overdose of pills. A January 2019 treatment record stated that the Veteran had a history of suicide attempts, and in December 2019, the Veteran said that he once overdosed with pills about a year ago but woke up and did not die. Although this evidence reflects that the Veteran has suicidal ideation and has made some suicidal attempts, the frequency, duration, and severity of this symptom has not more nearly approximated that the Veteran is a persistent danger to himself as he has indicated having coping measures, including having the VA crisis hotline number available to him. Although he has reported experiencing irritability, anger, and thoughts of harming others, the frequency, duration, and severity of such symptom has not more nearly approximated that he is a persistent danger to others.   In sum, a preponderance of the evidence is against a finding that the frequency, severity, and duration of the Veteran’s symptoms more nearly approximate the criteria warranting a 100 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a 100 percent compensable disability rating for PTSD is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a disability rating in excess of 60 percent for residuals of prostate adenocarcinoma The Veteran underwent a radical prostatectomy in September 2009 and contends that his residuals of prostate adenocarcinoma warrant a disability rating in excess of 60 percent for the appeal period. The Veteran’s residuals of prostate adenocarcinoma are rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528 for malignant neoplasms of the genitourinary system. Under the criteria for Diagnostic Code 7528, a 100 percent rating is warranted for malignant neoplasms of the genitourinary system. However, the Note to this Diagnostic Code indicates that following the cessation of surgical, X-ray, antineoplastic, chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) and, if there has been no local recurrence or metastasis, shall be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13 (Vet. App. Jan. 6, 2021) (holding that Diagnostic Code 7528 directs that evaluation of residuals of a malignant neoplasm of the genitourinary system be based solely on voiding or renal dysfunction, whichever is predominant and that other non-voiding and non-renal dysfunctions do not factor into a schedular evaluation under that Diagnostic Code).   The Veteran currently has a 60 percent disability rating for the appeal period based on voiding dysfunction, the highest rating possible under 38 C.F.R. § 4.115a. A rating in excess of 60 percent for his residuals of prostate adenocarcinoma requires renal dysfunction, or reoccurrence or metastasis. 38 C.F.R. § 4.115(b), Diagnostic Code 7528. Under the criteria for rating renal dysfunction, a rating of 100 percent is warranted when a veteran requires regular dialysis or is precluded from more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen (BUN) more than 80mg%; or creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted in cases of persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Turning to the evidence, VA treatment records, including in March 2013, indicate no acute or chronic renal failure and that the Veteran was not on dialysis. The evidence indicates no renal dysfunction other than renal cysts identified in July 2018. All treatment records indicate that the Veteran’s renal function is within normal limits. At the February 2019 hearing, the Veteran testified that he experienced urinary problems and erectile problems, but indicated that he did not experience any other residuals. He did not mention having any renal complications. A preponderance of the evidence is against a finding that the Veteran has experienced persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg. For example, November 2016 lab test results revealed BUN of 10 mg/dl and creatinine of 0.9. VA treatment records also do not reveal that the Veteran has experienced generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. As such, the evidence does not more nearly approximate the criteria for a higher 80 percent rating based on renal dysfunction criteria. Additionally, there is no evidence that the Veteran has experienced a local reoccurrence or metastasis of prostate cancer. March 2013 VA treatment records reflect that an October 2012 cystoscopy revealed a mass at the bladder neck that was concerning for a local recurrence. An October 2012 urogram revealed postoperative changes and mild soft tissue thickening along the left aspect of the bladder neck, but no evidence of a definite mass in the prostatectomy bed. A February 2013 cystoscopy revealed a right ureteral obstruction involved in bullous tissue and the Veteran was scheduled for cystoscopy under anesthesia and bladder biopsy in March 2013. The Veteran underwent a transurethral resection of a vesical neck contracture and a right ureteral stone was found and removed. The procedure did not indicate any local recurrence or metastasis of prostate cancer, including metastasis into the bladder. PSA results have been noted to be within normal range, including in July 2019. The Veteran also testified at his hearing before the Board that the prostate cancer had not recurred. The evidence does not otherwise show a local recurrence or metastasis of the prostate cancer. The Veteran has already been granted the maximum schedular rating for voiding dysfunction. There is no higher schedular rating that can be assigned for voiding dysfunction by regulation. See 38 C.F.R. § 4.115a, Voiding Dysfunction. In a case such as this one where the law and not the evidence is dispositive, entitlement to a higher schedular rating is denied because there is a lack of entitlement as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Full consideration has been given to the lay evidence, including the Veteran’s assertions that he has voiding dysfunction and erectile dysfunction. See February 2019 Hearing Transcript. But he is already service connected for both conditions as residuals of prostate adenocarcinoma and being compensated for the consequent impairment owing to each by way of the 60 percent rating for his urinary incontinence and separate 0 percent rating for his erectile dysfunction and the additional provision of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) because of loss of use of a creative organ.   Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a disability rating in excess of 60 percent for residuals of prostate adenocarcinoma during the period on appeal is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.