Citation Nr: 21021859 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-44 155A DATE: April 14, 2021 ORDER Entitlement to an initial evaluation in excess of 60 percent for prostate adenocarcinoma, remission is denied. Entitlement to an initial compensable rating for erectile dysfunction is denied. REMANDED Entitlement to service connection for gastrointestinal/stomach surgery is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected prostate adenocarcinoma, remission, there has been no local reoccurrence or metastasis of his prostate cancer, and his prostate cancer residuals have approximated urine leakage requiring absorbent materials which must be changed between 2 to 4 or 4 or more times per day; no renal dysfunction has been demonstrated. 2. The Veteran's s erectile dysfunction is not shown to be manifested by deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 60 percent for prostate adenocarcinoma, remission have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DCs) 7528-7527. 2. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code (DC) 7522 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967. These matters are on appeal from January 2013, June 2014, and February 2015 rating decisions. These matters were remanded by the Board in June 2018. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial evaluation in excess of 60 percent for prostate adenocarcinoma, remission is denied. Entitlement to an initial compensable rating for erectile dysfunction is denied. The Veteran is currently rated at 60 percent for prostate adenocarcinoma, remission, under 38 C.F.R. § 4.115b, DC 7528-7527. The hyphenated diagnostic code indicates that malignant neoplasms of the genitourinary system, under Diagnostic Code 7528 is the service-connected disorder, and prostate gland injuries, infections, hypertrophy, and postoperative residuals, under Diagnostic Code 7527, is the residual condition. 38 C.F.R. § 4.27 (2020). Under Diagnostic Code 7528, malignant neoplasms of the genitourinary system warrant a maximum 100 percent rating. A Note to Diagnostic Code 7528 provides that if there has been no local reoccurrence or metastasis, then the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. In this case, the Veteran's prostate cancer residuals have predominantly been characterized by voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7527. Under DC 7527 prostate gland injuries, infection, hypertrophy, and postoperative residuals are rated as voiding dysfunction or urinary tract infection, which ever predominates. The highest rating under the voiding dysfunction criteria is 60 percent and requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The highest rating under the urinary tract infection criteria is 30 percent and this rating requires recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, warrants the assignment of an 80 percent evaluation. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants the assignment of a 100 percent evaluation. 38 C.F.R. § 4.115a. On review of the record, VA treatment records note a medical history of the Veteran undergoing a biopsy with evidence of adenocarcinoma for which he underwent a radical prostatectomy procedure in 2007. On December 2012 VA prostate examination, the Veteran was diagnosed with prostate adenocarcinoma. The Veteran reported that by early 2007 he underwent a prostate biopsy at private sector that was reported as positive for adenocarcinoma of prostate. He underwent a radical prostatectomy in May 2007. He complained of urine incontinence requiring absorbent material that requires changes more than four times per day. He complained of weak erections requiring masturbation and vacuum-pump for adequate erections during sexual intercourse. His prostate adenocarcinoma was in remission. He had voiding dysfunction that caused urinary leakage and required absorbent material which must be changed more than 4 times per day. His voiding dysfunction did not require the use of an appliance. The voiding dysfunction did cause an increased urinary frequency. He experienced daytime voiding interval between 2 and 3 hours and nighttime awakening to void 2 times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. The Veteran did not have a history of recurrent symptomatic urinary tract kidney infections. He had erectile dysfunction due to radical prostatectomy due to prostate adenocarcinoma. He was not able to achieve an erection sufficient for penetration and ejaculation without medication but was able to do so with medication. He did not have retrograde ejaculation. He did not have any other residual conditions and/or complications. He had scars related to the condition. The scars were not painful and/or unstable or covered a total area greater than 39 square centimeters. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. Prostate-Specific Antigen testing in December 2012 was .015. On May 2014 VA prostate examination, the examiner reported that the Veteran’s adenocarcinoma of the prostate was in remission. The Veteran complained that he continued to have problems of urinary stress incontinence. His treatment for prostate cancer was completed and he was currently in watchful waiting status. He had voiding dysfunction that caused urinary leakage and required absorbent material which must be changed 2 to 4 times per day. He did not use an appliance. He experienced increased urinary frequency with daytime voiding interval between 1 and 2 hours. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. There were no other obstructive symptoms. He did not have a history of recurrent symptomatic urinary tract or kidney infections. He had erectile dysfunction. He was not able to achieve an erection sufficient for penetration with or without medication. He did not have retrograde ejaculation. There was no renal dysfunction. He did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. There was a scar, but it was not painful and/or unstable or cover an area greater than 39 square centimeters (6 square inches). The prostate cancer condition did not impact his ability to work. On January 2015 VA male reproductive system conditions examination, the Veteran was diagnosed with erectile dysfunction. He did not take continuous medication for the condition. He did not have an orchiectomy, or a renal condition associated with the condition. There was voiding dysfunction that caused urinary leakage and required him to use absorbent material which must be changed 2 to 4 times per day but did not require use of an appliance. He experienced daytime voiding between 1 and 2 hours. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. There were no other obstructive symptoms. He was not able to achieve an erection sufficient for penetration with or without medication. He had a history of chronic epididymitis, epididymo-orchitis or prostatitis. There were no benign or malignant neoplasm or metastases related to the condition. He did not have any scars related to the condition or other pertinent physical findings, complications, conditions, signs, or symptoms. He did not have any other residual conditions and/or complications due to the condition. There was a scar, but it was not painful and/or unstable or cover an area greater than 39 square centimeters (6 square inches). The prostate cancer condition did not impact his ability to work. Treatment records from Laboratorio Clinico of Rio Grande dated in February and July 2017 included a comprehensive metabolic panel in which the results of the eGFR were >60 mL/min/1.73m^2. A note reported that an eGFR below 60 mL/min/1.73m^2 suggested that some kidney damage occurred. On August 2020 VA prostate cancer examination, a history was noted that the Veteran was already service connected for prostate adenocarcinoma, remission, with voiding dysfunction residuals. He remained in remission as evidenced with serial PSA. He reported residuals as urinary incontinence and erectile dysfunction. His treatment for prostate cancer was completed and he was currently in watchful waiting status. He had voiding dysfunction that caused urinary leakage and required absorbent material which must be changed 2 to 4 times per day. He did not use an appliance. He experienced increased urinary frequency with daytime voiding interval between 1 and 2 hours and nighttime awakening 3 to 4 times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. There were no other obstructive symptoms. He did not have a history of recurrent symptomatic urinary tract or kidney infections. He had erectile dysfunction and used medications for treatment. He was not able to achieve an erection sufficient for penetration with or without medication. He did not have retrograde ejaculation. There was no renal dysfunction. He did not have any other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer. There was a scar, but it was not painful and/or unstable or cover an area greater than 39 square centimeters (6 square inches). He had a linear scar in the midline lower abdomen that measured 7.5 cm X .6 cm. PSA testing in March 2020 was < 0.014 ng/ml. The prostate cancer condition did not impact his ability to work. On August 2020 hepatitis, cirrhosis, and other liver conditions examination, the examiner found that there was no evidence of liver condition on service treatment records or in the Computerized Patient Record System (CPRS) and Veteran’s Benefits Management System (VBMS). In an August 2020 VA medical opinion, the examiner determined that there was no evidence of kidney conditions. The examiner specifically reported that the findings in February 2017 and July 2017 laboratory results were reviewed and were totally normal. Also, current laboratory evidence and medical data from VA and private medical records were silent for any renal disease. The examiner added that there was no evidence of penile deformity or loss of penile size. On August 2020 VA male reproductive system examination, the Veteran restated his prior histor and added that he required a diaper change three times daily due to urinary incontinence. He woke up three times at night to urinate. He also reported total impotence (total absence of an erection). He denied that his penis had a deformity or shrinkage. He added that he was treated with erectile dysfunction medication years ago, but it did not help the condition. Currently, he no longer had interest for treatment of this condition. His treatment plan did not include taking continuous medication, he did not have an orchiectomy, and there was no renal dysfunction. He had voiding dysfunction due to residuals of radial prostatectomy. He experienced increased urinary frequency with daytime voiding interval between 1 and 2 hours and nighttime awakening 3 to 4 times. The voiding dysfunction did not cause signs or symptoms of obstructed voiding. There were no other obstructive symptoms. He had a history of chronic epididymitis, epididymo-orchitis or prostatitis. He had a malignant neoplasm, in remission with completed treatment. He currently was in watchful waiting status. He did not have any scars related to the condition or other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran’s male reproductive system condition, including neoplasms, did not impact his ability to work. The VA examiners in December 2012, May 2014, and August 2020 reported that the Veteran did not have a history of urinary tract kidney infections. Further, laboratory testing in February and July 2017 was normal and no kidney disease was shown. The VA examiners in May 2014, January 2015, and August 2020, determined that there was no renal dysfunction. Based on the evidence of record, the Board finds the Veteran's prostate disorder is predominated by a voiding dysfunction and warrants a 60 percent disability rating, under Diagnostic Code 7257. During his VA examinations in December 2012, May 2014, January 2015, and August 2020, the Veteran had consistent complaints of urinary incontinence. The examinations showed that his voiding dysfunction caused urinary leakage that required absorbent material that needed to be changed between 2 to 4 or 4 or more times per day. The VA examinations reported that the voiding dysfunction did not cause signs or symptoms of obstructed voiding or any other obstructive symptoms. The Board notes that 60 percent is the highest disability rating available for any form of voiding dysfunction. Higher disability ratings of 80 and 100 percent are, however, available in cases involving renal dysfunction. 38 C.F.R. § 4.115a. However, as previously discussed renal dysfunction has neither been alleged or shown. Additionally, on August 2020 hepatitis, cirrhosis, and other liver conditions examination, the examiner found that there was no evidence of liver condition, so consideration of Diagnostic Codes involving the liver are not warranted. The Veteran’s erectile dysfunction has been assigned a noncompensable rating under Diagnostic Code 7522. VA’s use of Diagnostic Code 7522, evaluation of penis, deformity, with loss of erectile power, to rate the Veteran’s erectile dysfunction indicates that this specific disability is not addressed in the rating schedule, and that the service-connected erectile dysfunction has thusly been rated by analogy to penis deformity with loss of erectile power. 38 C.F.R. §§ 4.20, 4.115b, Diagnostic Code 7522. The Board cannot identify a more appropriate diagnostic code than Diagnostic Code 7522, nor has the Veteran identified one. Butts v. Brown, 5 Vet. App. 532, 538 (1993). Diagnostic Code 7522 provides for a single 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision addressing the question of penile deformity with respect to erectile dysfunction rating claims. In Williams v. Wilkie, the Court noted that the definition of a deformity is a distortion or disfigurement of a part of the body. See Williams v. Wilkie, 30 Vet. App. 134 (2018). The Court further noted that, in cases such as this, such deformities could be either internal or external distortions of the penis, which would support assignment of a 20 percent disability rating under Diagnostic Code 7522. Regarding the Veteran’s erectile dysfunction, the Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran’s Erectile dysfunction is not associated with a deformity which would warrant a 20 percent rating. In an August 2020 medical opinion, the VA examiner determined that there was no evidence of penile deformity or loss of penile size. On August 2020 VA male productive system examination, the Veteran himself specifically denied penis deformity or shrinkage. Additionally, the Board notes that the identified scars have been shown to be related to the Veteran’s radical prostatectomy and not his erectile dysfunction. Absent evidence of a penile deformity, a noncompensable rating is the only appropriate rating for the Veteran’s erectile dysfunction under Diagnostic Code 7522. Be that as it may, the Board notes that the Veteran is entitled to, and is receiving, special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) based on his erectile dysfunction. REASONS FOR REMAND Entitlement to service connection for gastrointestinal/stomach surgery is remanded. The Veteran claims that his gastrointestinal disorder and stomach operations are related to his exposure to Agent Orange in Vietnam. The Veteran has been service-connected for prostate cancer and Non-Hodgkin’s lymphoma as related to herbicide exposure. Service treatment records show that on his July 1967 separation report of medical history, the Veteran had complaints of stomach, liver, or intestinal trouble. Post service-treatment records show that he was seen for complaints of abdominal pain. An April 2011 private treatment record noted that he had a small bowel obstruction and an April 2011 PET/CT imaging results reported that there were several findings of the abdomen of concern and malignancy was suggested. In May 2011, he underwent gallbladder cholecystectomy. His abdominal pain continued, and an April 2012 colonoscopy showed a colon mass. An abdominal CT scan showed thickening of the entire colon, mesenteric, lymphadenopathy, and splenomegaly. Pathology showed that he was diagnosed with mantle cell lymphoma (Non-Hodgkin’s lymphoma). See also April 2016 VA examination report. An April 2012 treatment record noted that the Veteran presented at the emergency room with abdominal pain, in which an abdominal CT scan revealed a cecum mass. He underwent a right colectomy in May 2012. A May 2012 treatment record revealed that the Veteran had a colon mass and internal hemorrhoids. A May 2012 treatment record from National Institutes of Health/National Center Institute revealed a diagnosis of terminal ileum and right colon sigmoidal resection, mantel cell lymphoma. A July 2013 private treatment record included a review of the Veteran’s gastrointestinal system and was positive for constipation. In June 2018, the Board remanded the claim to identify any current gastrointestinal disorder and determine whether or not it was related to service, herbicide exposure, or a service-connected disability. Pursuant to the Board’s remand directives, VA examinations of the stomach and intestines were obtained in August 2020. In an August 2020 stomach and duodenal conditions examination, the examiner determined that there was no evidence of stomach conditions in the service treatment records, CPRS, or VBMS. In an August 2020 VA intestinal conditions examination, the examiner reported that the Veteran had never been diagnosed with an intestinal condition (other than surgical or infectious). However, as previously mentioned, private treatment records reflect multiple reports of abdominal pain. Additionally, more recent treatment records from VA showed that the Veteran had a bowel obstruction due to ileoileal intussusception and required surgery in May 2020. In September 2020, he underwent a colonoscopy. The colonoscopy revealed various polyps, diverticulitis found in the descending colon, and internal hemorrhoids. All polyps were removed by cold biopsy polypectomy. In September 2020, he underwent a lower GI tract endoscopy/upper GI tract endoscopy. The endoscopy report included a diagnosis of antral gastritis, distal esophageal erythema, and two inlet patches in the proximal esophagus. The Board finds that the August 2020 VA examinations are inadequate for adjudication purposes as the examiner did not adequately consider the medical evidence of record suggesting that the Veteran had a current gastrointestinal/stomach surgery disorder. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with the prior June 2018 Board remand directives. Accordingly, the Board must remand the matter again for a VA addendum opinion on the nature and etiology of the Veteran's claimed gastrointestinal/stomach surgery disorder. The matter is REMANDED for the following action: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran’s assistance, obtain copies of any pertinent records and add them to the claims file. 2. After the completion of directive #1 above, forward the Veteran’s claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of any current gastrointestinal disorder. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Regarding the gastrointestinal disorder the examiner should: i. Identify all current gastrointestinal disorders, to include consideration of the summary of the Veteran’s abdomen issues outlined in greater detail in the remand discussion above; ii. opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed gastrointestinal disorder had its onset during service or is otherwise related to service, to include herbicide agent exposure therein. The examiner should consider the Veteran’s complaints of stomach, liver or intestinal trouble on July 1967 separation report of medical history; and iii. opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed gastrointestinal disorder is either (1) caused by or (2) aggravated by (permanently increased in severity) the Veteran’s service-connected disabilities (the Veteran is currently service-connected for residuals of prostate adenocarcinoma, erectile dysfunction, Non-Hodgkin’s lymphoma, hearing loss, and tinnitus). See private treatment records dated in April 2011 through April 2012, April 2016 VA examination report, VA May and September 2020 VA treatment records, and summary of the Veteran’s gastrointestinal issues outlined in greater detail in the remand discussion above. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L.Crohe, 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.