Citation Nr: 21032044 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-35 826 DATE: May 25, 2021 ORDER Service connection for a skin disability of the right ankle is denied. Service connection for a skin disorder of the left ankle is denied. A rating in excess of 20 percent for residuals of prostate cancer from June 1, 2013, to December 17, 2018, is denied. A compensable rating for erectile dysfunction (ED) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a skin disability of the right ankle at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a skin disability of the left ankle at any time during or approximate to the pendency of the claim. 3. From June 1, 2013, to December 17, 2018, the Veteran's prostate cancer residuals were manifested by voiding dysfunction resulting in daytime voiding intervals between two and three hours with nighttime awakening to void three to four times per night. 4. The Veteran's penis is medically unremarkable and has no deformity. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability of the right ankle are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin disability of the left ankle are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 20 percent for residuals of prostate cancer from June 1, 2013, to December 17, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Codes (DCs) 7527, 7528. 4. The criteria for a compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.27, 4.31, 4.115b, Diagnostic Code (DC) 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to June 1971 and from July 1971 to September 1988. In November 2018, the Board remanded the above issues, along with the issues of entitlement to service connection for skin disabilities of the left and right foot, for additional disability. In a July 2020 rating decision, the Veteran was granted service connection for left foot callus and right foot callus, both rated 0 percent, effective March 22, 2013. Accordingly, the claims for service connection for a skin disability of the left and right foot are no longer before the Board. Regarding the matter of the rating for the Veteran's prostate cancer, the Board notes the Veteran initially appealed the 20 percent rating awarded for that disability. By rating decision dated in July 2020, the rating for the prostate cancer was increased to 100 percent, effective December 17, 2018. Following a VA examination conducted in March 2021, the 100 percent rating was confirmed and continued in a March 2021 rating decision. Thus, the Board finds that the matter related to the rating of the Veteran's prostate cancer from December 17, 2018, is not before the Board and a supplemental statement of the case following the March 2021 VA examination is not necessary to ensure due process. 38 C.F.R. § 19.31. Service Connection Entitlement to service connection for a skin disability of the right and left ankles The Veteran contends he has a skin disability of each of the ankles that is related to his military service. It is noted he had similar contentions regarding skin disabilities of each of his feet and that, by rating decision dated in July 2020, service connection was established for callus formation of each foot. Accordingly, this decision will focus only on the bilateral ankles. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of skin disability of either ankle and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Review of the record shows that the Veteran had no complaints of a chronic skin disorder of the ankles while on active duty and that on examination for retirement from service, a clinical evaluation of the lower extremities and skin was normal. On examination by VA in January 2014, the diagnosis was tinea corporis with the Veteran describing having had intermittent hand rashes since the 1970s. That examination showed no complaints or involvement of the skin of the ankles. On examination by VA in November 2019, no diagnosis of a chronic skin disorder of the ankles was made. At that time, the only diagnosis was callus of the feet. The examiner rendered a positive nexus opinion regarding callus of the feet, but rendered a negative nexus opinion regarding any skin disorder of the ankles. The rationale was that the examiner could not find any skin disability on the ankles. While dry skin was noted on the right inner ankle, there was no diagnosis of a disorder. Notably, during that examination, the Veteran reported for medical history that while in service, he did a lot a physical training while wearing combat boots and carrying heavy rucksacks. This resulted in him having sore feet and calluses on both feet. He did not make any complaints regarding the ankles. While the Veteran has filed a claim for service connection for skin disabilities of the bilateral ankles and may believe he has a current diagnosis of a chronic skin disorder of each ankle, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which does not demonstrate a chronic skin disorder of either ankle. While calluses of each foot have been found, these have been service-connected and are separately rated. Given the above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a chronic skin disorder of either ankle, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer from June 1, 2013, to December 17, 2018 Service connection was granted for prostate cancer by rating decision dated in January 2014. An initial rating of 100 percent was assigned in accordance with Diagnostic Code (DC) 7528 with a reduction to 20 percent, assigned from June 1, 2013, and based on voiding dysfunction in accordance with DC 7527. The Veteran's prostate cancer is rated pursuant to 38 C.F.R. § 4.115b, DC 7528, for malignant neoplasms of the genitourinary system or postoperative residuals. DC 7528 instructs to rate as voiding dysfunction or urinary tract infection, whichever is predominant. The criteria for voiding dysfunction and urinary tract infection are found in § 4.115a. Under 38 C.F.R. § 4.115a, a 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times a year) or requiring continuous intensive management. Poor renal function due to urinary tract infection is to be rated as renal dysfunction. A 10 percent rating for urinary tract infection is warranted when the disability requires long-term drug therapy, one to two hospitalizations per year, or intermittent intensive management. Voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. Regarding urine leakage, a 60 percent rating is warranted for requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 20 percent rating for voiding dysfunction is warranted for requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Voiding dysfunction that manifests as urinary frequency warrants a 40 percent rating when daytime voiding intervals are less than one hour, or awakening to void (nocturia) occurs five or more times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours, or nocturia occurs three to four times per night. A 10 percent rating is warranted when daytime voiding intervals are between two and three hours, or nocturia occurs twice per night. Id. Voiding dysfunction that manifests as obstructed voiding warrants a 30 percent rating when urinary retention requires intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology, such as 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./second; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating is warranted when obstructive symptomatology with or without stricture disease requires dilatation one to two times per year. An examination was conducted by VA in January 2014. At that time, the diagnosis was prostate cancer that was diagnosed in 2010. It was noted that the Veteran had undergone brachytherapy in November 2011 and that the disease was in remission. The Veteran was reported to have completed treatment in November 2011 and was currently in a watchful waiting status. The Veteran was noted to have voiding dysfunction that did not cause urine leakage or require the use of an appliance. The Veteran had increased urinary frequency with daytime voiding intervals between two and three hours with nighttime awakening to void three to four times per night. There were no signs of obstructive voiding and no signs of recurrent symptomatic urinary tract or kidney infections. The examiner indicated that the Veteran's prostate cancer did not impact his ability to work. Treatment records show that the Veteran began receiving medication for treatment of his prostate cancer beginning in December 2018. As such, the rating was increased to 100 percent, from that date, in compliance with DC 7528. For the period prior to December 18, 2018, the date the Veteran began receiving treatment once again for his prostate cancer, a review of the record does not demonstrate that a rating in excess of 20 percent is warranted for his prostate cancer residuals. In this regard, a 20 percent rating contemplates the symptoms noted on the January 2014 VA examination, which showed daytime voiding intervals between two and three hours and nocturia three to four times per night. There are no treatment records or examination reports prior to the December 2018 renewal of medication to treat his prostate cancer, that indicate the Veteran had renal dysfunction, or an indication of the need to use absorbent materials for voiding dysfunction. There was also no evidence of daytime voiding intervals less than once per hour or awaking to void five or more times per night. As such, a rating in excess of 20 percent is not warranted from June 1, 2013, to December 18, 2018. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7528. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating for residuals of prostate cancer, from June 1, 2013, to December 17, 2018, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A compensable rating for ED The Veteran's erectile dysfunction is rated noncompensable under 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Veteran appealed the noncompensable rating, but neither he nor his representative have explained how they believe agency of original jurisdiction (AOJ) erred in assigning this rating. Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this Diagnostic Code. Pursuant to 38 C.F.R. § 4.31, when the rating schedule does not provide a zero percent rating for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. The Board notes that no other schedular criteria apply to erectile dysfunction. The Board further notes that in addition to the noncompensable evaluation assigned for the Veteran's erectile dysfunction, he has been found entitled to special monthly compensation (SMC) on account of the loss of use of the creative organ. SMC is not an issue currently before the Board. The Board finds that the Veteran's penis is medically unremarkable. First, the Veteran does not claim, nor does the evidence show, a penile deformity. Second, the January 2014 and November 2019 VA compensation examiners, while detailing the history of the Veteran's erectile dysfunction, did not report that the Veteran had any penile deformity. Based on the foregoing, the Veteran does not merit a 20 percent rating under Diagnostic Code 7522, and the Board will deny the appeal. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.