Citation Nr: 21028892 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-41 305A DATE: May 12, 2021 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected recurrent urinary tract infections, is denied. Entitlement to an effective date prior to August 26, 2015 for an increased 20 percent rating for recurrent urinary tract infections is denied. Entitlement to a rating in excess of 20 percent for recurrent urinary tract infections is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED ISSUE In his December 2014 VA Form 9, the Veteran attempted to raise an informal claim for an increased rating for posttraumatic stress disorder (PTSD), noting his condition had worsened. See December 2014 VA Form 9. The Board emphasizes VA's requirement for a standardized claims form is only applicable to submissions dated after March 24, 2015. 79 Fed. Reg. 57660 (Sept. 25, 2014). To date, the Agency of Original Jurisdiction (AOJ) has not adjudicated this issue and the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). FINDINGS OF FACT 1. The Veteran's erectile dysfunction is not proximately due to or has been aggravated by his service-connected recurrent urinary tract infections or any other service-connected disability. 2. The record does not reflect that the Veteran filed a formal or informal claim for an increased rating for his recurrent urinary tract infections after the final October 2012 rating decision and prior to August 26, 2015 an increase in disability was not factually ascertainable within one year prior to that claim. 3. Throughout the appeal period, the Veteran's recurrent urinary tract infections have been manifested by voiding dysfunction, with daytime voiding between one and two hours and awakening to void three to four times per night. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection erectile dysfunction, to include as secondary to service-connected recurrent urinary tract infections, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an effective date earlier than August 26, 2015, for the award of an increased 20 percent rating for the Veteran's recurrent urinary tract infections have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for a rating in excess of 20 percent for recurrent urinary tract infections have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.115a, 4.115b, Diagnostic Code (DC) 7517. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1976 to July 1992. These matters came before the Board of Veterans' Appeals (Board) on appeal from October 2012 and November 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Veteran requested a Board hearing on his December 2014 VA Form 9, however in November 2015 correspondence he withdrew his request. 38 C.F.R. § 20.704(e). The appeal was remanded for further development in June 2018. Service Connection 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected recurrent urinary tract infections, is denied. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran asserts that his erectile dysfunction is secondary to his service-connected recurrent urinary tract infections. See August 2015 VA Form 21-526EZ. As the evidence of record does not raise direct service connection and the Veteran nor his attorney assert otherwise, only secondary service connection theory of entitlement will be addressed. The Veteran has a current diagnosis of erectile dysfunction. See November 2015 and July 2019 VA examination reports. Thus, element one of secondary service connection is met. As to element two, service connection is in effect for multiple disabilities, including recurrent urinary tract infections. Thus, element two of secondary service connection is met. Regarding, element three of secondary service connection, nexus, the only competent opinion of record, that of the July 2019 VA examiner, is against the claim. Specifically, the examiner opined that it is less likely than not that the Veteran's recurrent urinary tract infections did not aggravate or had any relationship to his erectile dysfunction. In support of his opinion, the examiner stated that there is no medically plausible mechanism of action for infections of the bladder to have any effect on erectile dysfunction. He explained that the nerves needed for normal erection run through the prostate, not the bladder, and blood flow to the penis is likewise not affected by any bladder condition. Moreover, while the Board previously determined that a November 2015 opinion was insufficient due to a lack of opinion on aggravation, there was no finding of insufficiency with the examiner's opinion on proximate causation. To this end, the November 2015 examiner opined that it is less likely than not that the Veteran's erectile dysfunction is proximately due to or the result of his recurrent urinary tract infections. In support of his opinion, the examiner noted the Veteran has multiple comorbid disease processes including hypertension, diabetes, and hypogonadism which have contributed to his erectile dysfunction. Thus, the examiner concluded that the etiology of his erectile dysfunction is multifactorial and is less likely as note related to his urinary tract condition. The Board finds the collective opinions to be probative, as together they are based on a thorough rationale with consideration of the Veteran's relevant medical history. Thus, element three of secondary service connection is not established. Finally, although service connection is in effect for other disabilities, the evidence of record does not reasonably indicate that these disabilities caused or aggravated his erectile dysfunction and the Veteran nor his attorney have asserted that his erectile dysfunction is due to another service-connected disability. To the extent the Veteran attributes his erectile dysfunction to his service-connected recurrent urinary tract infections, his opinion is not competent. Although the Veteran is competent to report on readily observable symptoms, he is not competent to determine the nature or etiology of erectile dysfunction. As a lay person, he has not been shown to be capable of making such conclusions on inherently medical questions. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The conclusion that the Veteran's erectile dysfunction is due to a service-connected disability is a determination requiring specialized knowledge and testing to understand the complex nature of the urinary system. As such, for reasons and bases outlined above, a preponderance of the evidence is against the claim. Accordingly, the benefit of the doubt doctrine does not apply, and service connection for erectile dysfunction, to include as secondary to a service-connected disability, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Earlier Effective Date 2. Entitlement to an effective date prior to August 26, 2015 for an increased 20 percent rating for recurrent urinary tract infections is denied. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). Generally, the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Furthermore, according to 38 C.F.R. § 3.157(b)(1) (in effect prior for claims filed prior to March 24, 2015), receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits "when such report relate[s] to examination or treatment of a disability for which service-connection has previously been established." 38 C.F.R. § 3.157(b)(1); see MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006); see also Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.159(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2) (in effect for claims filed prior to March 24, 2015). Here, the Veteran seeks an effective date earlier than August 26, 2015, for the award of an increased 20 percent rating for recurrent urinary tract infections. A June 2012 rating decision awarded service connection for recurrent urinary tract infections and assigned a noncompensable rating, effective January 18, 2012. In an October 2012 rating decision, the RO increased the rating to 10 percent, effective July 5, 2012. The Veteran was notified of these decisions in June 2012 and October 2012, respectively. The Veteran did not appeal either decision as to the disability rating and effective date assigned. Accordingly, the June 2012 and October 2012 rating decisions became final as to the disability rating and effective date of service connection for recurrent urinary tract infections. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. On August 26, 2015, VA received the Veteran's claim for an increased rating for service-connected recurrent urinary tract infections. During the November 2015 and July 2019 VA examinations, findings were consistent with an increased rating. See 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.115a, 4.115b, DC 7517. In a June 2017 rating decision, the RO granted an increased 20 percent rating for the Veteran's recurrent urinary tract infections, effective August 26, 2015, the date of his claim. The Veteran nor his attorney have asserted that he filed an informal or formal claim for an increased rating for his recurrent urinary tract infections following the October 2012 rating decision and prior to August 26, 2015, and there are no relevant VA treatment records or private treatment records that can be construed as a prior informal claim. Absent an earlier claim for increase for recurrent urinary tract infections or of evidence showing an increase in the disability within one year prior to the date the claim was received, which is not demonstrated in this case, the earliest effective date that is warranted is the currently assigned date of August 26, 2015, corresponding to the date of receipt of his claim for compensation and which is the earliest effective date allowed by law. Thus, based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to an earlier effective date for his recurrent urinary tract infections, and his appeal as to this issue is denied. Increased Rating 3. Entitlement to a rating in excess of 20 percent for recurrent urinary tract infections is denied. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria The Veteran's recurrent urinary tract infections are currently rated pursuant to DC 7517 for injury of bladder. DC 7517 provides that rating should be as voiding dysfunction. 38 C.F.R. §§ 4.115a, 4.115b. The Rating Schedule for voiding dysfunction provides that the particular condition will be rated as urine leakage, urinary frequency, obstructed voiding, or urinary tract infection. 38 C.F.R. § 4.115a. When rating for urine leakage, a 20 percent rating is assigned when the disability requires the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating is assigned when the disability requires the wearing of absorbent materials that must be changed two to four times per day. A maximum 60 percent rating is assigned when the disability requires the wearing of absorbent materials that must be changed more than four times per day. Id. When rating for urinary frequency, a 10 percent rating is warranted for 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 ot void three to four times per night. A maximum 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more timers per night. Id. When rating for obstructed voiding, a noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilation 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 150cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; and (4) stricture disease requiring periodic dilatation every two to three months. A maximum 30 percent rating is assigned for urinary retention requiring intermittent or continuous catherization. Id. When rating for urinary tract infection, poor renal function is to be rated as renal dysfunction. A 10 percent rating is warranted for long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A maximum 30 percent rating is warranted for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or continuous intensive management. III. Analysis As detailed hereinabove, a 20 percent disability rating is in effect from August 26, 2015. The Board notes that at no time during the appeal period has the medical evidence demonstrated nor has the Veteran reported renal dysfunction as a residual of his urinary tract infections. Therefore, the Board will use the voiding dysfunction criteria for applicable analysis of the assigned rating. The Veteran was afforded a VA examination in November 2015. The examiner noted voiding dysfunction that does not cause urine leakage and does not require the use of an appliance. The examiner indicated that his voiding dysfunction causes an increase in urinary frequency with daytime voiding interval between one and two hours and awakening to void three to four times per night. The examiner also indicated his voiding dysfunction caused symptoms of obstructed voiding including slow stream, urinary urgency, and intermittent dysuria. The examiner noted that there was no markedly slow stream. No other marked symptomatology was indicated, including marked hesitancy, markedly weak stream, or decreased force of stream. The examiner noted a history of recurrent symptomatic bladder or urethral infections, stating the Veteran reported three urinary tract infections in the past 12 months for which he was prescribed antibiotics. His ability to work is impacted due to his problems sleeping at night due to his urinary tract symptoms listed above. Most recently, the Veteran was afforded a VA examination in July 2019. The examiner noted voiding dysfunction that does not cause urine leakage and does not require the use of an appliance. The examiner indicated that his voiding dysfunction causes an increase in urinary frequency with daytime voiding interval between two and three hours and awakening to void three to four times per night. The examiner indicated his voiding dysfunction did not cause symptoms of obstructed voiding. The examiner noted a history of recurrent symptomatic bladder or urethral infections but noted that the Veteran did not report having any urinary tract infections for the past five years. His ability to work was noted as not impacted. Based on the totality of the evidence the Board finds that the Veteran's recurrent urinary tract infections have been manifested by voiding dysfunction, with daytime voiding between one and two hours and two and three hours and awakening to void three to four times per night, warranting a 20 percent rating under urinary frequency as already assigned. Notably, throughout the appeal period the Veteran's voiding dysfunction has not required the use of absorbent materials or an appliance such that a higher rating under urine leakage is appropriate. Further, although his voiding dysfunction was found to cause obstructed voiding during his November 2015 VA examination, the next higher rating of 30 percent under obstructed voiding requires urinary retention requiring intermittent or continuous catherization, and the Board finds no evidence of such in the record. Thus, a higher rating under obstructed voiding is also not warranted. Additionally, although the medical evidence of record shows a history of recurrent symptomatic urinary tract infections during the earlier portion of the appeal period, the evidence does not show symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year) and/or requiring continuous intensive management which is required for the next higher rating of 30 percent, therefore a rating under urinary tract infection (or renal dysfunction) is also not warranted. To any extent the Veteran asserts a higher rating is warranted at any time during the appeal period, the competent evidence of record does not reveal and the Veteran has not otherwise asserted he has met the applicable criteria for a higher rating at any time during the appeal period. As such, the Board finds that the Veteran's recurrent urinary tract infections has been manifested by increased urinary frequency with daytime voiding interval between one and two and two and three times and awakening to void three to four times per night. Thus, the Veteran's symptoms more closely approximate the rating criteria for a 20 percent rating and a rating in excess of this is not warranted. REASONS FOR REMAND 4. Entitlement to a TDIU is remanded. The Veteran's TDIU claim is inextricably intertwined with the increased rating claim for his PTSD that has been referred to the AOJ as noted above, thus, appellate consideration of this issue is deferred pending resolution of the PTSD claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.