Citation Nr: 21022594 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-39 275 DATE: April 16, 2021 ORDER Entitlement to a disability rating higher than 60 percent for recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis is denied. FINDING OF FACT The Veteran’s recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis produce a predominant dysfunction of voiding dysfunction, requiring the wearing of absorbent materials which must be changed more than 4 times per day, and also produce urinary frequency and recurrent symptomatic urinary tract infections, without producing a disability picture so exceptional that the available schedular evaluations for those disabilities are inadequate. CONCLUSION OF LAW The criteria for a disability rating higher than 60 percent for recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10. 4.115A, 4.115B, Diagnostic Codes 7518, 7525, 7527 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1973 to October 1975. In February 2013 the Veteran submitted a claim for service connection for enlarged prostate-benign prostatic hypertrophy (BPH). In an October 2014 rating decision, the RO denied service connection for BPH. The RO continued ratings of 0 percent each for epididymitis with intermittent orchialgia and for nonspecific urethritis. The Veteran appealed those denials to the Board. In August 2019 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In a September 2020 decision, the Board granted service connection for recurrent prostatitis. The Board remanded to the RO, for additional action, the issues of higher ratings for epididymitis with intermittent orchialgia and for nonspecific urethritis. The Board instructed the RO to review the ratings for the Veteran epididymitis with intermittent orchialgia, his nonspecific urethritis, and his recurrent prostatitis. The Board instructed the RO, in reviewing those ratings, to consider the extent to which any symptoms of the disorders overlap. In a February 2021 rating decision, the RO evaluated as one condition recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis. The RO assigned for that condition a rating of 60 percent, effective February 14, 2013. 1. Disability rating for recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis The rating issue on appeal is entitlement to a disability rating higher than 60 percent for recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis. The Veteran has separate service connection, a separate rating, and special monthly compensation for erectile dysfunction associated with his service-connected psychiatric disability. VA assigns disability ratings 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 VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating 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. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decisionmaker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115A. In evaluating the Veteran’s recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis, the RO considered 38 C.F.R. § 4.115B, Diagnostic Codes 7525 and 7527. Diagnostic Code 7525 provides for chronic epididymo-orchitis to be rated as urinary tract infection. Diagnostic Code 7527 provides for prostate gland hypertrophy to be rated as voiding dysfunction of urinary tract infection, whichever is predominant. In addition, Diagnostic Code 7518 provides for stricture of urethra to be rated as voiding dysfunction. Under 38 C.F.R. § 4.115A, voiding dysfunction is rated as a particular condition, urine leakage, frequency, or obstructed voiding. For continual urine leakage, postsurgical urinary diversion, urinary incontinence, or stress incontinence, a 60 percent rating is assigned if the condition requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A 40 percent rating is assigned if it requires the wearing of absorbent materials which must be changed 2 to 4 times per day, 20 percent if less than 2 times per day. Urinary frequency is rated at 40 percent with daytime voiding interval less than one hour or awakening to void five or more times per night, 20 percent with daytime voiding interval between one and two hours or awakening to void three to four times per night, and 10 percent with daytime voiding interval between two and three hours or awakening to void two times per night. Urinary tract infection (UTI) is rated at 30 percent if there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or it requires continuous intensive management, and at 10 percent if there is long-term drug therapy, 1-2 hospitalizations per year and/or it requires intermittent intensive management. The Veteran’s VA treatment records reflect his history of chronic UTIs. He had treatment in August and September 1999 for urinary frequency. He had treatment in January 2003 for urinary frequency and a probable UTI. From January 2014 he was treated with medication for BPH. On VA examination in March 2014, the Veteran reported that in service he had frequent UTIs. He stated that presently he had UTIs on average several times per year. He reported urinary frequency treated with medication. He stated that he urinated every several hours during the day and three to four times at night. In VA treatment in September 2014, a list of the Veteran’s problems included BPH and recurrent UTI. In the August 2019 Board hearing, the Veteran asserted that the 2014 VA examination was inadequate and that the examination report contains errors. He reported having symptoms of prostatitis, epididymitis, orchialgia, and urethritis intermittently from service through the present. He stated that he had UTIs at least three time per year. He reported that he was treated with antibiotics with each infection and was on continuous drug therapy between infections. He stated that he awakened at least six times per night to urinate. He reported that his daytime urination intervals varied from one to three hours. He stated that he had urinary leakage that required wearing prescribed urinary pouches. He related that his urinary frequency and leakage were frustrating. The Veteran submitted an internet article from a university medical school that describes chronic prostatitis. In January 2021 a private clinician completed a VA Disability Benefits Questionnaire (DBQ) regarding the Veteran’s urinary tract. The examiner found that the Veteran’s urinary tract disorders caused voiding dysfunction, with urine leakage requiring the use of absorbent pouches that required changing five or more times per day. The Veteran reported a daytime voiding interval of between one and two hours and nighttime awakening to void five or more times. He reported that he averaged three UTIs per year. The examiner noted that his recurrent UTIs required long-term drug therapy and continuous intensive management. In January 2021 a VA-contracted clinician completed a VA DBQ regarding the Veteran’s urinary tract. The examiner reviewed the Veteran’s claims file and examined the Veteran. The Veteran reported that his urinary frequency made work and sleep very difficult. The examiner found that the Veteran’s urinary tract disorders caused voiding dysfunction, with urine leakage requiring the use of absorbent pouches. The Veteran reported a daytime voiding interval of between one and two hours and nighttime awakening to void five or more times. Recurrent UTIs required long-term drug therapy and continuous intensive management. Separate ratings for the Veteran’s recurrent prostatitis, epididymitis with intermittent orchialgia, and urethritis are not warranted. Each of those disorders is to be evaluated based on voiding dysfunction and UTI. Under 38 C.F.R. § 4.114A, only the predominant area of dysfunction is to be considered for rating purposes. In addition, treatment and examination records indicate that his urinary leakage and incontinence, urinary frequency, and UTIs each are caused two or more of his service-connected conditions of prostatitis, epididymitis, orchialgia, and urethritis. The evaluation of the same disability manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14. The appealed 60 percent rating for voiding dysfunction assigned for the Veteran’s urinary tract disorders is the maximum rating that the rating schedule provides for voiding dysfunction or urinary tract infection. The Board will consider whether he is entitled to an extraschedular rating. The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. The urinary leakage, urinary frequency, and UTIs associated with the Veteran’s urinary tract disorders are contemplated by the rating criteria and the assigned ratings. The medical evidence fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate. As the available schedular criteria for prostatitis, epididymitis, orchialgia, and urethritis are adequate, referral for consideration of an extraschedular rating is not warranted. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.