Citation Nr: 21013790 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-25 496 DATE: March 10, 2021 ORDER Entitlement to an initial rating in excess of 60 percent disabled for residuals of prostate cancer since May 1, 2018, is denied. Entitlement to an initial compensable rating for erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran has the maximum schedular rating for voiding dysfunction associated with the residuals of his prostate cancer. 2. The Veteran does not have a deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 60 percent disabled for residuals of prostate cancer since May 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for entitlement to an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.115b, DC 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1968. In an August 2020 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to clarify if the Veteran intended to seek a total disability rating based upon individual unemployability (TDIU). In October 2020, the AOJ sent a letter requesting the Veteran to complete a TDIU application if he wanted to seek a TDIU rating. The Veteran did not respond. The Board notes that the claims file contains no evidence that the Veteran is unemployed, and June 2017 VA treatment records indicate that the Veteran is employed full time. Because entitlement to a TDIU rating has not been expressly raised by the Veteran or reasonably raised by the record, it is not currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 60 percent disabled for residuals of prostate cancer since May 1, 2018. The Veteran’s residuals of prostate cancer are rated under DC 7528 as 100% disabling from September 28, 2017, to April 30, 2018; and as 60 percent disabling since May 1, 2018. The Veteran's prostate cancer is rated under DC 7528, covering malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b, DC 7528. Under DC 7528, a rating of 100 percent is warranted for a malignant neoplasm. Id. 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. 38 C.F.R. § 4.115b, DC 7528, Note. Any change in evaluation based upon that or any subsequent examination is then subject to the provisions governing a reduction in disability rating. Id. If there is no local reoccurrence or metastasis, the disability should be rated on residuals as voiding or renal dysfunction, whichever is predominant. Id. 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). The Veteran underwent a radical prostatectomy, and his prostate cancer is now in remission. See February 2018 VA Examination. As there is no local reoccurrence or metastasis of the prostate cancer, the Board will consider whether a higher rating is warranted based on the residuals of voiding or renal dysfunction pursuant to the provisions of 38 C.F.R. § 4.115a. As explained below, the Veteran does not allege and the evidence does not show renal dysfunction, thus the predominant residual in this case is voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Of the three categories, 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. A higher rating may not be awarded for prostate cancer residuals unless there is evidence of significant renal dysfunction. 38 C.F.R. § 4.115a. In his May 2020 substantive appeal, the Veteran indicated that he used absorbent material 100 percent of the time and had to change the material four-to-five times per day. During a September 2020 VA examination, the Veteran reported urinary incontinence using absorbent material several times per day and nocturia two times per night. The examiner indicated that the Veteran had a voiding dysfunction related to his prostatectomy that required absorbent materials to be changed two-to-four times per day. The Veteran’s residuals of prostate cancer are rated at the maximum schedular criteria of 60 percent disabling under voiding dysfunction since May 1, 2018. The February 2018 and May 2020 VA examinations reflect associated voiding dysfunction but do not reflect associated renal dysfunction. Additionally, May 2020 VA treatment records reflect normal kidney function. Finally, the Veteran has not alleged any renal dysfunction. Under the ratings for renal dysfunction, a rating of 80 percent disabled is warranted for persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. § 4.115a. In the absence of evidence of this symptomology, a rating in excess of 60 percent disabled for residuals of prostate cancer is not warranted under the ratings for renal dysfunction. 2. Entitlement to an initial compensable rating for erectile dysfunction The Veteran’s erectile dysfunction is currently rated as noncompensable under DC 7599-7522. Additionally, in a March 2018 rating decision, the AOJ granted entitlement to special monthly compensation based on loss of use of a creative organ. The Board notes that there is no specific diagnostic criterion for erectile dysfunction. See generally, 38 C.F.R. § 4.115b, Ratings of the Genitourinary System. Here, the Veteran’s erectile dysfunction has been rated by analogy under DC 7522, which represents an unlisted genitourinary disability evaluated by penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, DC 7522. DC 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power. This rating is the only schedular rating provided under this diagnostic code. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. A note for DC 7522 indicates that, when evaluating any claim involving loss or loss of use of one or more creative organs, refer to 38 C.F.R. § 3.350 to determine whether the veteran may be entitled to special monthly compensation. The Board notes that the Veteran is already in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) due to loss of use of a creative organ. This compensation contemplates impotence, and may be awarded even if the veteran can achieve erection and penetration with the use of medication. A separate rating under Diagnostic Code 7522 may only be awarded for deformity of the penis with loss of erectile power. As such, a compensable rating under DC 7522 (20 percent) is not warranted in the absence of penile deformity. Here, the Veteran’s evidence does not meet the requirement threshold. Although the Veteran has loss of erectile power, neither the lay nor the medical evidence reflects penile deformity. In fact, the August 2020 medical opinion, which was sought to specifically address any presence of penile deformity, clearly indicates that there is no such deformity and no abnormality noted (except loss of erectile power). During this examination, the Veteran declined a direct examination but reported no penile or testicular deformity, other than noting his penis was “shorter.” The remaining evidence of record, to include a February 2018 VA examination, reflects that the Veteran does not have penile deformity. Furthermore, the Veteran has not presented evidence of penile deformity, nor has he presented evidence of any symptom beyond erectile dysfunction, for which he already receives a special monthly compensation for loss of use of a creative organ as mentioned above. See, e.g., May 2020 Substantive Appeal (the Veteran notes erectile dysfunction but does not note penile deformity or any other symptoms). For these reasons, the Board finds that a compensable rating for erectile dysfunction is not warranted. There is no other provision of the code that would afford the Veteran a compensable evaluation for his erectile dysfunction. (Continued on the next page) The Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further discussion as to this matter is required. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.