Citation Nr: 21063007 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-19 781 DATE: October 12, 2021 ORDER Entitlement to a separate rating for bladder/urethra scar, painful, residual of prostate cancer (bladder/urethra scar), is granted. REMANDED Entitlement to a rating in excess of 50 percent prior to June 26, 2020, and in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder with depressive disorder (psychiatric condition), is remanded. Entitlement to a rating in excess of 40 percent for urinary incontinence, residual of prostate cancer, is remanded. Entitlement to an initial compensable rating for scars status post robotic prostatectomy, residual of prostate cancer (abdominal scars), is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's diagnosed dysuria is attributable to a painful bladder/urethra scar. CONCLUSION OF LAW The criteria for a separate rating of 10 percent, but no higher, for bladder/urethra scar, painful (claimed as painful urination) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION 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. These matters come 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. 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. See January 2020 Board Hearing Transcript. In a March 2020 decision, the Board denied the issue of entitlement to an increased rating for urinary incontinence and remanded the issues of entitlement to an increased rating for the Veteran's psychiatric condition and entitlement to separate ratings for abdominal scars and dysuria. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the parties entered into a Joint Motion for Partial Remand (JMPR), in which the parties agreed that a remand of the claim of entitlement to an increased rating for urinary incontinence was warranted to obtain outstanding VA treatment records regarding the Veteran's urinary incontinence. In May 2021, the Court granted the JMPR and remanded the claim for further development. As an initial matter, the Board notes that, in its March 2020 decision, the Board found that, in his April 2016 Notice of Disagreement (NOD) and April 2017 VA Form 9, the Veteran had contended that his service-connected erectile dysfunction warranted compensation. However, the Board determined that, as the Agency of Original Jurisdiction (AOJ) had not addressed a claim of entitlement to increased rating for the Veteran's service-connected erectile dysfunction, nor had the Veteran submitted such a claim, the issue was not before the Board. As part of the JMPR, the parties agreed that this determination should be reassessed in light of Grimes v. McDonough, 34 Vet. App. 84 (2021), and Bailey v. Wilkie, 33 Vet. App. 188 (2021). In Grimes, the Court held that a claim for service connection may encompass a related condition that is initially referenced by a claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the AOJ. In Bailey, the Court held that, as non-voiding and non-renal dysfunctions do not factor into a schedular evaluation under DC 7528, entitlement to separate evaluations for non-voiding and non-renal dysfunctions related to prostate cancer cannot be considered part and parcel of a claim as to the proper evaluation level for prostate cancer residuals under DC 7528. However, the Court also held that when entitlement to service connection for non-voiding and non-renal residuals is raised during the adjudication of a claim for an increased rating for service-connected prostate cancer, such residuals must be considered. Unlike in Grimes and Bailey, here, the Veteran was granted service connection for erectile dysfunction, secondary to prostate cancer, in a November 2012 rating decision.; the Veteran did not appeal the decision nor has he submitted a claim of entitlement to an increased rating for his erectile dysfunction. As such, the issue is not whether entitlement to secondary service-connection has been raised by the record, but whether an increased rating for the Veteran's service-connected erectile dysfunction is part and parcel to his claim of entitlement to an increased rating for his prostate cancer residuals rated under DC 7528. The Board finds that, as non-voiding and non-renal dysfunctions do not factor into a schedular evaluation under DC 7528, entitlement to an increased rating for erectile dysfunction, secondary to prostate cancer, cannot be considered part and parcel of the Veteran's claim of entitlement to an increased rating for his prostate cancer residuals rated under DC 7528. See 38 C.F.R. § 4.115b, DC 7528; Bailey v. Wilkie, supra. If the Veteran believes that the severity of his service-connected erectile dysfunction warrants a compensable rating (i.e. there is both loss of erectile power and a deformity of the penis), he is encouraged to submit a supplemental claim for such. Additionally, the Board notes that an August 2020 rating decision assigned a 50 percent rating effective April 26, 2014, and a 70 percent rating effective June 26, 2020, for the Veteran's service-connected psychiatric condition. As this increase does not represent a total grant of the benefits sought on appeal, the claim for a higher rating remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). Entitlement to a separate rating for bladder/urethra scar is granted. Factual Background. The Veteran's VA treatment records notes intermittent reports of dysuria. See New Orleans VA Medical Center (VAMC) records, received March 2017, August 2017, January 2019, March 2020, and April 2020 in CAPRI; Jackson VAMC records, received March 2020 in CAPRI. In July 2020, the Veteran underwent a VA examination in which the examiner noted that the Veteran's prostate cancer residuals included dysuria and reduced urinary stream. The examiner ultimately opined that the Veteran's dysuria was caused by scar tissue that formed between the bladder and urethra following his prostatectomy. See July 2020 VA Prostate Cancer Disability Benefits Questionnaire (DBQ); July 2020 VA Medical Opinion DBQ. Analysis. As discussed in the Board's March 2020 decision, when the Veteran was originally granted service connection for dysuria, the condition was included with, and rated under DC 7528 for urinary incontinence. However, 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). Further, under DC 7528, residuals of prostate cancer are evaluated based only on voiding or renal dysfunction; other residuals, if separately service connected, are to be compensated under appropriate diagnostic codes not in 38 C.F.R. § 4.115b. See Bailey v. Wilkie, supra. Here, the Veteran is already service-connected for dysuria. In July 2020, the Veteran underwent a VA examination in which the examiner opined that the Veteran's dysuria was caused by scar tissue that formed between the bladder and urethra following his prostatectomy. See July 2020 VA Prostate Cancer Disability Benefits Questionnaire (DBQ); July 2020 VA Medical Opinion DBQ. In other words, the examiner opined that the Veteran's symptom of dysuria was attributable to a painful bladder/urethra scar that was a residual of the Veteran's prostate cancer. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four painful or unstable scars, and the maximum 30 percent rating is assigned for five or more scars that are painful or unstable. 38 C.F.R. § 4.118, DC 7804. Based on the above, with resolving reasonable doubt in the Veteran's favor the Board finds that the Veteran's symptom of dysuria is attributable to a painful bladder/urethra scar. As such, a separate 10 percent rating is warranted for painful bladder/urethra scar, residual of prostate cancer, under DC 7804. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent prior to June 26, 2020, and in excess of 70 percent thereafter, for service-connected psychiatric condition, is remanded. 2. Entitlement to a rating in excess of 40 percent for urinary incontinence, residual of prostate cancer, is remanded. 3. Entitlement to a compensable rating for abdominal scars is remanded. The Board regrets the delay associated with this remand, particularly as these matters are the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the evidence indicates that there may be relevant medical records not associated with the claims file. Specifically, the Veteran's VA treatment records indicate that he received treatment at Hattiesburg Community Based Outpatient Clinic (CBOC), part of Jackson VAMC, beginning in August 2014. See New Orleans VAMC records. However, only records relating to treatment at Jackson VAMC in August 2019 have been associated with the claims file. See Jackson VAMC records. Additionally, the Veteran's VA treatment records indicate that he is followed by several private doctors. See New Orleans VAMC records. However, only excerpts of records relating to treatment from South Central Regional Medical Center (RMC) in August 2012 and Crescent City Urology in 2012 have been associated with the claims file. See South Central RMC records, received May 2016; Crescent City Urology records, received April 2013. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Additionally, the Board notes that VA examinations were conducted in July 2020 regarding the nature and severity of the Veteran's service-connected psychiatric condition, urinary incontinence, and abdominal scars. See July 2020 VA Review PTSD DBQ; July 2020 VA Prostate Cancer DBQ; July 2020 Scars DBQ. However, as noted above, potentially relevant medical records may not have been associated with the claims file. As such, if any additional relevant medical records are associated with the claims file on remand, addendum opinions should be obtained regarding the nature and severity of such conditions. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 120, 123 (2007). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims file any outstanding pertinent medical records, whether VA or private, to include: (a.) Records relating to treatment from South Central RMC and Crescent City Urology; (b.) The entirety of records relating to treatment at Jackson VAMC; and (c.) Records relating to treatment at New Orleans VAMC from April 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the above, and any additional development warranted by the record, IF AND ONLY IF ADDITIONAL MEDICAL RECORDS ARE OBTAINED, return this matter to the July 2020 examiner and obtain an addendum opinion regarding the nature and severity of the Veteran's service-connected psychiatric condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the July 2020 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is scheduled, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include the SEVERITY, FREQUENCY, AND DURATION of symptoms 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. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT ANY SUCH REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 3. After completing the above, and any additional development warranted by the record, IF AND ONLY IF ADDITIONAL MEDICAL RECORDS ARE OBTAINED, return this matter to the July 2020 examiner and obtain an addendum opinion regarding the nature and severity of the Veteran's service-connected urinary incontinence. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the July 2020 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is scheduled, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include the SEVERITY, FREQUENCY, AND DURATION of symptoms 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. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT ANY SUCH REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. After completing the above, and any additional development warranted by the record, IF AND ONLY IF ADDITIONAL MEDICAL RECORDS ARE OBTAINED, return this matter to the July 2020 examiner and obtain an addendum opinion regarding the nature and severity of the Veteran's service-connected abdominal scars. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the July 2020 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is scheduled, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include the SEVERITY, FREQUENCY, AND DURATION of symptoms 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. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT ANY SUCH REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 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.