Citation Nr: 21072277 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-07 939 DATE: December 2, 2021 ORDER An initial 70 percent rating since October 31, 2014, for posttraumatic stress disorder (PTSD) is granted. A rating of 60 percent from October 1, 2015, to March 8, 2017, for prostate cancer is granted. A rating of more than 60 percent since March 9, 2017, for prostate cancer is denied. A rating of 10 percent from August 14, 2015, to September 24, 2018, for post laparoscopic prostatectomy converted to open procedure surgical scar with tenderness to palpation is granted. A rating of more than 10 percent since September 25, 2018, for post laparoscopic prostatectomy converted to open procedure surgical scar with tenderness to palpation is denied. REMANDED The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Since October 31, 2014, the Veteran had occupational and social impairment with deficiencies in most areas. 2. Since October 1, 2015, the Veteran wore absorbent materials which had to be changed more than four times per day. 3. Since August 14, 2015, the Veteran has had a prostatectomy surgical scar which is painful. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, since October 31, 2014, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411. 2. The criteria for a rating of 60 percent, from October 1, 2015, to March 8, 2017, for prostate cancer have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a rating of more than 60 percent since March 9, 2017, for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.115a, 4.115b, Diagnostic Code 7528. 4. The criteria for a rating of 10 percent from August 14, 2015, to September 24, 2018, for post laparoscopic prostatectomy converted to open procedure surgical scar with tenderness to palpation have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.118, Diagnostic Codes 7801, 7804. 5. The criteria for a rating of more than 10 percent since September 25, 2018, for post laparoscopic prostatectomy converted to open procedure surgical scar with tenderness to palpation have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.118, Diagnostic Codes 7801, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1967 to April 1970. He served in the Republic of Vietnam and his military decorations include the Purple Heart and the Bronze Star Medal. On his February 2017 VA Form 9, the Veteran requested a Travel Board hearing. In November 2019, the Veteran withdrew his hearing request. Therefore, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(e). Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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 or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to an initial rating of more than 30 percent from October 31, 2014, to August 13, 2015, and of more than 50 percent since August 14, 2015, for PTSD. A 30 percent rating for PTSD is warranted where there is 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 normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, 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 an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran has a non-service-connected psychiatric disorder, in addition to his service-connected PTSD. No competent medical professional has separated the effects of the non-service-connected disorder from those associated with the service-connected disorder. Therefore, all the Veteran's psychiatric symptoms will be attributed to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that when claimant has both service connected and non-service-connected disabilities, Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran has continuously prosecuted this appeal from the date of the January 2015 rating decision which granted service connection for PTSD. Therefore, intervening rating decisions have not become final, and this appeal is of the initial rating assigned. In October 2014 and August 2015 statements, the Veteran reported symptoms of difficulty sleeping, talking and fighting in his sleep, intrusive thoughts, intrusive memories, anger and irritability, isolation, panic attacks several times per week, memory impairment, depressed mood and a lack of motivation, and impairment in social and family relationships. In January 2015, the Veteran was afforded a VA examination. He was diagnosed with PTSD and alcohol use disorder. The examiner indicated that it was not possible to differentiate what symptoms were attributed to each diagnosis because PTSD is strongly associated with substance use and the two are comorbid disorders. The Veteran had been married for 45 years and had five adult children; two of his great-grandchildren lived with him and his spouse. He had a good relationship with his spouse, children, and grandchildren, and he enjoyed spending time with his family. He had retired in 2002 from the U.S. Postal Service where he worked for 32 years. He reported symptoms of difficulty sleeping, nightmares, restlessness, feeling depressed, memory impairment, cold sweats, poor appetite, fighting in his sleep, a feeling of being on edge, intolerance to noise, preferring to be alone or with family, and an avoidance of crowds. He had hobbies of fishing and walking in the woods; he had not been able to attend a ballgame since service. On examination, the clinician found symptoms of recurrent, involuntary, and intrusive distressing memories and dreams of in-service trauma; avoidance of external reminders of in-service trauma; feelings of detachment or estrangement from others; hypervigilance; anxiety; chronic sleep impairment; mild memory loss; and disturbances of motivation and mood. He denied suicidal and homicidal ideation and hallucinations; he was able to independently complete his activities of daily living. In November 2015, the Veteran was afforded another VA examination. He was diagnosed with PTSD and alcohol use disorder currently in full remission. The Veteran's spouse stated that she sleeps in a different room from the Veteran because he has trouble falling asleep. He also reported frequent nightmares. She reported that he is emotionally distant and insecure, wants to know where she is at every moment, and that he had a bad temper and was highly irritable around others. On examination, the clinician found the symptoms reported at the January 2015 VA examination plus symptoms of intense or prolonged psychological distress and marked physiological reactions to cues symbolizing an aspect of in service trauma; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; markedly diminished interest or participation in significant activities; irritable behavior and angry outbursts; exaggerated startle response; problems with concentration; suspiciousness; panic attacks more than once a week; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; a foreshortened sense of the future; and avoidance of crowds and other public places. He was well-dressed and groomed, denied suicidal and homicidal ideation, had no paranoid delusions, and was able to independently perform activities of daily living. In November 2017, the Veteran was afforded another VA examination. He was diagnosed with PTSD and moderate alcohol use disorder. The examiner noted that his alcohol use disorder did not cause any of his symptoms. The Veteran reported that he had nightmares a few nights per week which caused night sweats, agitation, and that he had accidentally hit his spouse in his sleep. He reported that he sometimes screamed in his sleep. In addition to symptoms found at previous examinations, the clinician found dissociative reactions in which the Veteran felt that the in-service trauma was recurring; avoidance or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the in-service trauma; persistent inability to experience positive emotions; and depressed mood. In December 2018, the Veteran was afforded another VA examination. He was again diagnosed with PTSD and moderate alcohol use disorder. The examiner stated that the diagnoses were not independent of each other and were part of the same disorder. His symptoms were the same as those found on previous examinations. In addition to symptoms noted on examinations, VA treatment records indicate suicidal ideation. Affording the Veteran the benefit of the doubt, the Board finds that a 70 percent rating is warranted since October 31, 2014. A 100 percent rating is not warranted because the Veteran did not have total occupational and social impairment. He had a good relationship with his spouse, children, grandchildren, and great-grandchildren; was raising his great-grandchildren; had retired from the U.S. Postal Service after working there for 32 years; and had some hobbies, including fishing and walking in the woods. 2. Entitlement to a rating of more than 20 percent from October 1, 2015, to March 8, 2017, and of more than 60 percent since March 9, 2017, for prostate cancer, to include a separate rating for prostatectomy surgical scar, currently rated as noncompensable from August 14, 2015, to September 24, 2018, and as 10 percent since September 25, 2018. The Veteran's prostate cancer is rated according to diagnostic code 7528. This diagnostic code provides that a 100 percent rating is warranted for malignant neoplasms of the genitourinary system. The note to this diagnostic code states 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 § 3.105(e) of this chapter. 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, Diagnostic Code 7528. 38 C.F.R. § 4.115a provides rating criteria for renal dysfunction and voiding dysfunction. A noncompensable rating for renal dysfunction is warranted for albumin and casts with history of acute nephritis; or hypertension non compensable under diagnostic code 7101. A 30 percent rating is warranted for 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. A 60 percent rating is warranted for constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for 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. A 100 percent rating is warranted for an individual who requires regular dialysis or is precluded from more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Voiding dysfunction should be rated as urine leakage, frequency, or obstructed voiding. A 20 percent rating is warranted for continual Urine Leakage, Post-Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is warranted for disability requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. 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 4 times per day. A 10 percent rating is warranted urinary frequency of daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. A noncompensable rating is warranted for obstructed voiding with obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year; 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: (1) Post void 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. (4) Stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. The scar ratings were changed in 2018. The changes are semantic and do not affect the rating to which the Veteran is entitled. Therefore, the Board will rate the Veteran's prostatectomy surgical scar using the current rating criteria. Diagnostic code 7801 states a burn scar or scar due to other causes that is not of the head, face, or neck, but is associated with underlying soft tissue damage warrants a rating of 10 percent if the area of the scar is at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square meters). Note (1) states that the six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) states: "A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars that are unstable or painful are rated according to diagnostic code 7804. Diagnostic code 7804 states that one or two scars that are unstable or painful warrants a 10 percent evaluation. Three or four scars that are unstable or painful warrants a 20 percent evaluation. Note (1) to the diagnostic code states that "An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar." Note (2) states that "If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars." Note (3) states: "Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable." 38 C.F.R. § 4.118, Diagnostic Code 7804. In an April 2011 rating decision, the RO granted service connection for prostate cancer and assigned a 100 percent rating effective November 16, 2010, due to active cancer. In April 2012, November 2012, and February 2013, the 100 percent rating was continued due to continued active cancer. In an October 2014 rating decision, the RO proposed to reduce the Veteran's rating to 20 percent because he no longer had malignant neoplasms and was, therefore, to be rated based on voiding dysfunction. In an October 2014 statement, the Veteran expressed disagreement with the reduction. However, this is not construed as a notice of disagreement (NOD) because it was submitted in response to a proposed action and no adverse action had yet been taken. In a July 2015 rating decision, the RO reduced the rating to 20 percent effective October 1, 2015. The Veteran did not submit an NOD with the reduction. Before the reduction could become effective, however, the Veteran filed a claim in August 2015 for an increased rating. Therefore, this appeal covers the entire period since the reduction took place. Because the Veteran did not file an NOD to the reduction, the Board need not address the issue of whether the reduction was proper. In a July 2018 rating decision, the RO increased the Veteran's rating to 60 percent effective March 9, 2017, and granted a noncompensable rating for a prostatectomy surgical scar. In December 2018, the RO granted an increased rating to 10 percent rating effective September 25, 2018, for the scar. In an August 2015 statement, the Veteran reported that he had a prescription for absorbent pads, that he used at least two pads per day, and that he was voiding every one to two hours during the day and up to five times each night. In December 2015, the Veteran was afforded a VA examination. It was noted that he had had a radical prostatectomy, undergone radiation treatment, and undergone androgen deprivation therapy. The examiner found no voiding dysfunction and no history of urinary tract or kidney infections. The Veteran had erectile dysfunction for which he did not take medication. On his February 2017 VA Form 9, the Veteran reported wearing absorbent materials that required changing more than four times per day. In March 2017, the Veteran was afforded VA examinations. The examiner found that the Veteran had a voiding dysfunction causing urine leakage which required absorbent material which must be changed more than four times per day, that the Veteran had a daytime voiding interval between one and two hours, and that the Veteran woke at night to void three to four times. He had no signs or symptoms of obstructed voiding. He had erectile dysfunction. In November 2017, the Veteran was afforded another VA examination. He had symptoms as previously reported. He was waking to void five or more times per night. The examiner noted that the Veteran had two scars. The first one was 4.0 centimeters by 0.5 centimeters and the second was 9.0 centimeters by 0.5 centimeters. In October 2018, the Veteran was afforded VA examinations. The examiner stated that the Veteran's disorder had worsened with blood in his urine. He had current symptoms of hematuria, erectile dysfunction, slow urination, and leakage of urine. He was taking medication for his symptoms. He had obstructed voiding resulting in a slow stream, a weak stream, and decreased force of stream; his stream was not markedly decreased in any of these ways. The examiner stated that the Veteran had an anterior lower abdominal scar because of his prostatectomy. It was 11 centimeters by 1 centimeter, was tender to palpation and had underlying tissue damage of approximately 11 square centimeters. Other symptoms were the same as on previous examinations. VA treatment records throughout the period on appeal reflect symptoms that were the same as those found on examinations. Given these facts, the Board finds that a 60 percent rating is warranted throughout the period on appeal because the Veteran wore absorbent materials which had to be changed more than four times per day. Therefore, an increased rating to 60 percent is granted from October 1, 2015, to March 8, 2017. A rating of more than 60 percent since March 9, 2017, is denied. A higher rating is not warranted as there is no evidence that the Veteran had renal dysfunction and no evidence of local reoccurrence or metastasis of the prostate cancer. The Veteran is also entitled to a 10 percent rating for a painful prostatectomy surgical scar since August 14, 2015, when VA received the Veteran's claim for an increased rating for his prostate cancer. He has been noted to have either one or two prostatectomy scars, but no more. Therefore, a rating of more than 10 percent is not warranted at any time during the period on appeal. Additionally, although the Veteran's prostatectomy scar is associated with underlying soft tissue damage, it is not at least 39 square centimeters and, therefore, an additional rating under diagnostic code 7801 is not warranted. REASONS FOR REMAND The issue of entitlement to TDIU is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The record states that the Veteran retired from the U.S. Postal Service in 2002. An October 2018 male reproductive organ examination, however, indicates that he may be working. The examination report states that the Veteran lost two to four weeks of work in the prior 12 months. It is unclear whether the Veteran is currently working and what his work history has been since his 2002 retirement. Remand is, therefore, necessary to obtain information about the Veteran's employment history. 2. Conduct all appropriate development to determine whether the Veteran is currently working, and to obtain his employment history. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.