Citation Nr: 21025490 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-19 749A DATE: April 28, 2021 ORDER A disability rating in excess of 10 percent for duodenal ulcer disease is denied. A compensable disability rating for prostatitis is denied. FINDINGS OF FACT 1. The Veteran’s duodenal ulcer disease is not manifested by recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or by continuous moderate manifestations. 2. The Veteran’s prostatitis is not manifested by the use of absorbent materials that must be changed less than two times per day; a daytime voiding interval between two and three hours or waking to void two times per night; obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year; or urinary tract infections requiring long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for duodenal ulcer disease have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7305. 2. The criteria for a compensable disability rating for prostatitis have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, DC 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to December 1988 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board remanded the claims for further development. The electronic filing system contains three pages of VA treatment records that were associated with the file by VA, rather than the Veteran, since the RO’s last readjudication of the claims without a waiver of RO jurisdiction. However, the records do not contain information pertinent to adjudicating the claims below. As such, there is no risk of prejudice to the appellant from proceeding without the waiver. Higher Rating Claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The Board's analysis will focus specifically on what evidence is needed to substantiate the claims, and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here largely consists of the VA examination reports discussed below. The Veteran's treatment records were considered, but generally do not contain the specific information sufficient for rating the disabilities under the applicable rating criteria. 1. A disability rating in excess of 10 percent for duodenal ulcer disease is denied. In a November 1989 rating decision, the RO granted service connection for duodenal ulcer disease and assigned a 10 percent rating. In an April 1991 rating decision, the rating was reduced to a noncompensable level. In the January 2016 rating decision on appeal, a higher rating of 10 percent was granted. In November 2020, the Board remanded the claim in order to afford the Veteran with an updated VA examination. The Veteran’s duodenal ulcer disease is rated pursuant to 38 C.F.R. § 4.114, DC 7305. Under this code, a 10 percent rating is assigned for a mild disability, with recurring symptoms once or twice yearly. A 20 percent rating is assigned for a moderate disability, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating is assigned for a moderately severe disability, less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating for a severe disability, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. On VA examination in December 2015, the Veteran reported that he did not have symptoms related to his duodenal ulcer. He did not require any medication for his disability. The examiner noted that in November 2015, a gastrointestinal consultation took place, and no stomach complaints were reported. Treatment records similarly lacked documentation of complaints or treatment related to the disability. The examiner determined that the disability was manifested by abdominal pain occurring at least monthly. There were no incapacitating episodes due to any sign or symptom of duodenal ulcer disease. There were no other signs or symptoms related to a duodenal ulcer. On VA examination in November 2020, the Veteran reported having acid reflux, which he treated with over the counter medication as needed. On review of the claims file and interview of the Veteran, the examiner found there were no signs or symptoms of duodenal ulcer disease. There were no incapacitating episodes due to any sign or symptom of a duodenal ulcer. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s duodenal ulcer. The next higher rating of 20 percent requires recurring episodes of severe symptoms two or three times per year, averaging 10 days in duration, or continuous moderate manifestations. This symptomatology is not shown by the record. While the December 2015 VA examiner noted abdominal pain, it was not continuous and was not described as severe and lasting 10 days in duration on average. The November 2020 VA examiner determined that the Veteran was asymptomatic; no symptomatology was found due to duodenal ulcer disease. As such, the preponderance of the evidence is against a rating higher than 10 percent. The Board can point to no other diagnostic code that would provide a basis for the assignment of a rating in excess of 10 percent for the Veteran’s duodenal ulcer. The record does not raise the presence of other disabilities contemplated by the rating schedule for the digestive system, or the symptomatology contemplated by those codes. In reaching this decision, the Board considered the doctrine of reasonable doubt. 2. A compensable disability rating for prostatitis is denied. In a November 1989 rating decision, the RO granted service connection for prostatitis and assigned a 10 percent rating. In an April 1991 rating decision, the rating was reduced to a noncompensable level. In the January 2016 rating decision on appeal, the noncompensable rating was continued. In November 2020, the Board remanded the claim in order to afford the Veteran with an updated VA examination. The Veteran’s prostatitis is rated pursuant to 38 C.F.R. § 4.114, DC 7527, which addresses prostate gland injuries, infections, hypertrophy, or postoperative residuals. It is distinguishable from DC 7528, which provides ratings for malignant neoplasms of the genitourinary system. DC 7527 provides ratings based on voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4115a contains the provisions for voiding dysfunction and urinary tract infections. Voiding dysfunction may be rated based on urine leakage, urinary frequency, or obstructed voiding. As for urine leakage, a minimum rating of 20 percent rating is assigned where absorbent materials must be changed less than two times per day. A 40 percent rating is assigned where absorbent materials which must be changed two to four times per day. A 60 percent rating is assigned where the use of an appliance is required, or absorbent materials must be changed more than four times per day. As for urinary frequency, a 10 percent rating is assigned for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is assigned for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is assigned for a daytime voiding interval of less than one hour, or awakening to void five or more times per night. As 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) 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, or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. As for urinary tract infections, a 10 percent rating is assigned where there is long-term drug therapy, one to two hospitalizations per year, and/or the condition requires intermittent intensive management. A 30 percent rating is assigned for recurrent symptomatic infections requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal functioning is rated based on renal dysfunction. On VA examination in December 2015, the Veteran reported having changes in his urine stream based on fluid and caffeine consumption. The examiner determined that the Veteran had benign prostatic hyperplasia (BPH) in addition to his service-connected prostatitis. He did not require the use of absorbent materials or an appliance. He had a daytime voiding interval between one and two hours. His symptoms of obstructive voiding consisted of hesitancy, a weak stream, and a decreased force of stream. There were no other obstructive symptoms. There were no other pertinent physical findings, complications, conditions, signs or symptoms. At the conclusion of the report the examiner stated that the Veteran’s urinary symptoms were most consistent with BPH. In an January 2016 addendum opinion, a VA examiner opined that the Veteran’s BPH was less likely than not due to or a progression of his service-connected prostatitis. The examiner explained that prostatitis is an acute condition caused by an infection, while BPH is a chronic condition due to aging. Prostatitis is not known to cause or aggravate BPH. Private medical records from 2020 document lower urinary tract symptoms, including frequency, urgency, and incomplete voiding, due to BPH. In November 2020, separate VA examinations were conducted to assess the Veteran’s voiding dysfunction. The examiner found that he did not require the use of absorbent materials or an appliance. He had a daytime voiding interval between one and two hours. His symptoms of obstructive voiding consisted of hesitancy, a weak stream, and a decreased force of stream. There were no other obstructive symptoms. There were no other pertinent physical findings, complications, conditions, signs or symptoms. There was no history of recurrent urinary tract, kidney, bladder, or urethral infections. At the conclusion of the report the examiner noted that the Veteran did not have active prostatitis or prostate cancer; the only active condition was the non-service connected BPH. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against a compensable disability rating for the Veteran’s prostatitis. A compensable rating based on urinary leakage requires evidence of absorbent materials that must be changed less than two times per day. Both VA examiners determined that absorbent materials are not required. A compensable rating based on urinary frequency requires evidence of a daytime voiding interval between two and three hours, or awakening to void two times per night. While the Veteran has a daytime voiding interval of one to two hours, this has been consistently attributed to his non-service connected BPH, a condition shown to be unrelated to the service-connected prostatitis. The evidence in this regard is consistent and there is no evidence to the contrary. A compensable rating based on obstructed voiding requires evidence of 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. Both VA examiners determined that the Veteran’s obstructive symptoms consisted only of hesitancy, a slow or weak stream, and a decreased force of stream. The remaining symptomatology contemplated by the regulation were not found. A compensable rating based on urinary tract infections requires long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. The November 2020 VA examiner found no history of recurrent urinary tract, kidney, bladder, or urethral infections and there is no evidence to the contrary. The Board can point to no other diagnostic code that would provide a basis for the assignment of a compensable rating for the Veteran’s prostatitis. The record does not raise the presence of other disabilities contemplated by the rating schedule for the genitourinary system, or the symptomatology contemplated by those codes. In reaching this decision, the Board considered the doctrine of reasonable doubt. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.