Citation Nr: 21070049 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 13-25 084A DATE: November 22, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected urethral strictures prior to April 28, 2014, is denied. FINDING OF FACT Prior to April 28, 2014, the Veteran's service-connected urethral stricture disability was manifested by narrowing of the urethra with an irregular urinary flow that required dilation, to include self-dilation. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for service-connected urethral strictures prior to April 28, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.115a, 4.115b, Diagnostic Codes 7509, 7511, 7518 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 to July 2012. These matters have a procedural history which includes prior Board remands, a Board Decision in September 2018, and an April 2020 Memorandum Decision of the Court of Appeals for Veterans Claims (Court), which vacated portions of the September 2018 Decision. In April 2021, the Board remanded the issues of entitlement to service connection for hypertension and entitlement to a compensable evaluation for service-connected urethral strictures prior to April 28, 2014, for further development. In a September 2021 rating decision, the Regional Office (RO) granted service connection for hypertension and increased the evaluation assigned to the Veteran's service-connected urethral stricture to 20 percent, effective August 1, 2012. This decision was a complete grant of benefits with respect to the issue of service connection pertaining to hypertension, and that issue is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Since the RO did not assign the maximum disability rating possible, this rating decision would not serve as a complete grant of benefits with respect to the increased rating issue, and that issue remains on appeal before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Increased Rating 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. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Veteran is seeking entitlement to an evaluation in excess of 20 percent for service-connected urethral strictures prior to April 28, 2014. The Veteran's urethral stricture disability has been rated under the provisions of 38C.F.R.§§ 4.115a, 4.115b, Diagnostic Codes 7509, 7511, and 7518. Diagnostic Code 7511 calls for evaluation of stricture of the ureter to be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: 1) diet therapy, 2) drug therapy, and 3) invasive or non-invasive procedures more than two times/year, which is evaluated at 30 percent. The criteria for hydronephrosis are found at Diagnostic Code 7509 and assign a 10 percent rating for only an occasional attack of colic, not infected and not requiring catheter drainage; a 20 percent rating for frequent attacks of colic, requiring catheter drainage; a 30 percent rating for frequent attacks of colic with infection (pyonephrosis), kidney function impaired; and, severe hydronephrosis is rated as renal dysfunction (found at 38C.F.R.§4.115a). Renal dysfunction is rated as noncompensable when there is albumin and casts with history of acute nephritis or hypertension noncompensable under Diagnostic Code 7101. Id. A 30 percent evaluation is warranted when there is albumin constant or recurring with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. Id. With constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101, a 60 percent evaluation is warranted. Id. An 80 percent evaluation is for application when there is 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. Id. A maximum 100 percent evaluation is warranted when regular dialysis is required or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. Diagnostic Code 7518 calls for stricture of the urethra to be rated as a voiding dysfunction (urine leakage, frequency, or obstructed voiding). Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is to be rated based upon its particular condition as urine leakage, frequency, or obstructed voiding. See 38 C.F.R. § 4.115a. Of note, these provisions are expressed using the disjunctive, indicating that a Veteran is to be rated under only one of the three categories of urine leakage, urinary frequency, or obstructed voiding. The assignment of separate ratings for urine leakage, urinary frequency, or obstructed voiding would be pyramiding and is not permissible under 38 C.F.R. § 4.14. For urine leakage, a 20 percent evaluation is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent material which must be changed less than 2 times per day. A 40 percent rating is assigned where the wearing of absorbent materials must be changed 2 to 4 times per day. The maximum rating of 60 percent is warranted when there is urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Increased urinary frequency is rated as follows: a 10 percent rating is assigned for daytime voiding interval between two and three hours, or awakening to void two times per night; a 20 percent rating is assigned for daytime voiding interval between one and two hours, or awakening to void three to four times per night; and, a 40 percent rating is assigned for daytime voiding interval less than one hour, or awakening to void five or more times per night. For obstructed voiding, a noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1) postvoid residuals greater than 150 cc; 2) uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); 3) recurrent urinary tract infections secondary to obstruction; or, 4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. Upon review of the claims file, the Board concludes that the evidence does not support assigning an evaluation in excess of 20 percent prior to April 28, 2014. In order to receive an evaluation in excess of 20 percent, the evidence must demonstrate frequent attacks of colic with infection (pyonephrosis), kidney function impairment; severe hydronephrosis; daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night; urinary retention requiring intermittent or continuous catherization; urine leakage requiring the wearing of absorbent materials that must be changed 2 or more times per day or the use of an appliance; renal dysfunction; or recurrent stone formation requiring one or more of the following: 1) diet therapy, 2) drug therapy, and 3) invasive or non-invasive procedures more than two times/year. As service connection was granted for urethral stricture upon discharge from service, the Board has reviewed the Veteran's service treatment records, as well as his post-service medical records, in evaluating the period of time on appeal. In this regard, the Board acknowledges that the Veteran sought treatment for urological complaints throughout service, to include undergoing a surgical urethral dilation on February 10, 2011. A July 7, 2011, service treatment record reflects that the Veteran had a history of recurrent stricture disease with balanitis xerotica obliterans (BXO) and meatal stenosis. He was referred for distal urethral stricture and meatal stenosis. It was noted that he had had many previous procedures, to include a meatoplasty in 2004 for the inability to urinate, and multiple dilations of the urethra by urologists across the military. It was noted that the last dilation and direct visual internal urethrotomy (DVIU) was in March 2011. On a recent examination, the Veteran was found to have a meatal stenosis with inability to pass an 8Fr catheter, as well as dorsal left skin bridge around the corona. It was noted that, since November, the Veteran had noticed progressive weakening of his stream, increasing straining to void, and split/deviating stream. He denied dysuria, hematuria, urinary retention, frequency and urgency. Service treatment records reflect that the Veteran underwent a CUA and meatoplasty on July 12, 2011, for recurrent meatal stenosis. He presented 8 days later for catheter removal without post-operative complaints. He was given a sharktooth dilator to start performing daily meatal dilations to keep meatus patent. In a July 26, 2011 service treatment record, it was noted that the Veteran voided with a satisfactory stream. In an October 2011 service treatment record, it was noted that the Veteran had had a urethroplasty and meatoplasty for balanitis xerotica obliterans and secondary urethral meatal stenosis. It was noted that the Veteran had been doing very well and noted no decrease in his urinary stream. It was noted that this distal urethroplasty was healing well, and the urethral opening was adequate. There was some inflammatory change around the urethral meatus, but this was not as severe as previously noted. It was noted that he had a good urinary stream and good urinary flow. A March 2012 examination report noted that the Veteran's urethral stricture was asymptomatic. In a March 2012 treatment record, the Veteran reported that he had been voiding with satisfactory stream but was noting some "spraying" over the last 24 hours. The Veteran was diagnosed with meatal stenosis and it was noted that he was having a recurrence of his urethral stenosis with resultant spraying. He was provided with a self-dilating device and directed to gently dilate the urethral meatus twice a day with this instrument. In an April 11, 2012, treatment record, it was noted that the Veteran was having some recurrence of obstruction. It was noted that he had been doing self-dilation, and that there was significant improvement in his urinary flow. He no longer felt that it was restricted. Subsequent VA treatment records do not reflect that the Veteran sought treatment on a consistent basis for this disability immediately following service. In a March 25, 2014, VA treatment record, the Veteran reported that he had a urethral stricture and requested to see a urologist for a urethral dilation. The provider placed an order for urology consultation and indicated that he thought the Veteran would need urethral dilation. It was noted that he was doing fine otherwise. In an April 2014 private treatment record from Sparks Urology Group, the Veteran reported having to strain to void and presented with stenotic meatus, pinpoint stream, and dysuria. He reported problems getting his urine stream started and reported that his symptoms had worsened within the last year. He reported burning or discomfort when he urinated. It was noted that he was not having problems with urinary control or incontinence. He did not urinate more frequently than once every 2 hours in the daytime. The Veteran subsequently underwent the following procedures at Sparks Regional Medical Center on May 22, 2014: meatoplasty, cytoscopy, lysis of penile adhesions, and complex Foley catheter placement. It was noted that he has not undergone a procedure since 2011. The Board finds that the medical evidence of record reflects that the Veteran's service-connected urethral strictures disability meets the assigned 20 percent evaluation for the period prior to April 28, 2014, under Diagnostic Code 7509, based on his reports of pain and discomfort that could be considered comparable to frequent attacks of colic. In rendering this decision, the Board has considered the Veteran's symptoms as documented in his service treatment records, throughout the period of time on appeal, and in the months following April 28, 2014. As discussed above, there is no evidence of record reflecting that he suffered infection, kidney function impairment, or intermittent or continuous catheterization due to this disability, or that he met any of the other criteria discussed above for an evaluation in excess of 20 percent for the period of time on appeal. The Board notes that the Veteran's disability has required catheter placement at times in relation to surgical procedures, such as in July 2011 and May 2014. However, the evidence of record does not reflect that this disability has consistently required intermittent or continuous catheterization throughout the period of time on appeal or within the year leading up to the grant of service connection. Accordingly, an evaluation in excess of 20 percent is not warranted for the Veteran's service-connected urethral strictures for the period prior to April 28, 2014. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show that the Veteran suffers from symptoms related to his service-connected urethral strictures better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. Moreover, the Board notes that VA is currently amending the schedule for rating genitourinary diseases and conditions, effective November 14, 2021. 86 Fed. Reg. 187 (September 30, 2021). However, this new amendment is not applicable to the current appeal, as it is not effective until November 14, 2021, and the period of time on appeal dates prior to April 28, 2014. The preponderance of the evidence is against the appeal for an increased rating for any period of time on appeal. The benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.