Citation Nr: 21032064 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 06-24 144 DATE: May 25, 2021 ORDER Entitlement to an initial evaluation higher than 20 percent for service-connected interstitial cystitis for the period prior to January 29, 2004, and for the period February 14, 2005 to October 14, 2018 is denied. Entitlement to an initial rating of 40 percent for service-connected interstitial cystitis for the period January 29, 2004 to February 13, 2005 is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. Entitlement to an initial evaluation higher than 20 percent for interstitial cystitis for the period beginning on October 15, 2018 is remanded. FINDINGS OF FACT 1. For the period prior to January 29, 2004, and from February 14, 2005 to October 14, 2018, the Veteran's interstitial cystitis symptoms, including dysuria, frequency, and pelvic pressure, manifested with daytime voiding interval between one and two hours or awakening to void three to four times per night. 2. From January 29, 2004 to February 13, 2005, the evidence of record is at least in equipoise as to whether the Veteran's symptoms approximated daytime voiding interval of less than one hour or awakening to void five or more times per night. CONCLUSIONS OF LAW 1. For the period prior to January 29, 2004, and from February 14, 2005 to October 14, 2018, the criteria for entitlement to an initial evaluation higher than 20 percent for service-connected interstitial cystitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7512. 2. From January 29, 2004 to February 13, 2005, the criteria for an initial rating of 40 percent for interstitial cystitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On initial review of this case the Board allowed a 20 percent rating for the interstitial cystitis for the entire rating period. See 07/24/2018 BVA Decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While the appeal was pending, the Veteran, through counsel, and the Secretary, VA, agreed to and submitted a Joint Motion for Partial Remand (JMPR). See 12/30/2020 CAVC Decision, P. 2-8. In an Order also dated in December 2020, the Court granted the JMPR, vacated the July 2018 Board decision in part, and remanded the case to the Board for further review consistent with the JMR. Id. P. 9. Entitlement to an initial evaluation higher than 20 percent for service-connected interstitial cystitis The consensus of the parties in the JMR was that the Board's reasons and bases for disallowing a 40 percent rating were inadequate. Specifically, the Board did not give adequate consideration to a private treatment record that noted of "continuous frequency." Id. P. 5. (Quotes in Original). Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activities, 38 C.F.R. § 4.10. See Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial evaluation following an 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 (1999). The Agency of Original Jurisdiction (AOJ) evaluated the Veteran's disability under Diagnostic Code 7512, which governs chronic cystitis. Under this diagnostic code, manifestations of the disability are to be rated based on voiding dysfunction. 38 C.F.R. § 4.115b. Voiding dysfunction is rated with regard to urine leakage, urinary frequency, or obstructive voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent evaluation. The need to wear absorbent materials which must be changed two to four times per day warrants a 40 percent rating. The use of an appliance or wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent evaluation. Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent evaluation. A daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a 40 percent evaluation. A 10 percent evaluation is assigned where there is obstructive voiding symptomatology with marked obstructive symptomatology with any one or combination of: post-void residuals greater than 150 cc; a markedly diminished peak flow rate of less than 10 cc/sec; recurrent urinary tract infections secondary to obstruction; or stricture disease requiring periodic dilatation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent evaluation. The Board first notes that there is no evidence or allegation of renal dysfunction in this case, and so those rating criteria, which provide for higher disability ratings of 80 and 100 percent, will not be discussed. 60 percent is the highest disability rating available for any form of voiding dysfunction. See 38 C.F.R. § 4.115a. Discussion The Veteran's private and VA treatment records indicate a protracted history of treatment for symptoms of interstitial cystitis. Since prior to applying for service connection for a gynecological condition in September 2003, the Veteran has sought relief for related symptoms, including pelvic pressure and pain, dysuria, frequency, and burning on urination. The Veteran's private treatment records reflect similar complaints in records from several different specialists from whom the Veteran sought treatment. In January 2004, one urologist described the Veteran presenting four years prior with complaints of urgency, frequency, and low back pain, and returning more recently with a great increase in these symptoms. See 01/23/2004 Medical Treatment-Non-Government Facility, P. 2. The private clinician also noted that the Veteran's symptoms consisted of almost continuous frequency. In June and July 2004, another urologist noted significant pelvic discomfort continuing after the Veteran's hysterectomy, including bladder pain and urgency, and administered anesthetic bladder instillations as treatment. February 2004 progress notes from this second urologist's practice indicate daytime voiding frequency of 10 to 15 times. See 01/02/2009 Non-Government Facility. For consideration is whether "continuous frequency" or 10 to 15 times a day more nearly approximated a daytime voiding interval of less than one hour or awakening to void five or more times per night. The Board acknowledges that a reasonable argument may be had that 10 to 15 days a day combined with continuous frequency approximates daytime voiding of less than one hour. Private treatment records, however, simply do not indicate that desired specificity. Hence, the Board resolves the absence of certainty in the Veteran's favor and allows the maximum, 40 percent rating, effective January 29, 2004, the date of the clinician's note. 38 C.F.R. § 3.400, 4.3, 4.115a. The Board finds further that the weight of the evidence of record is against a finding that the Veteran's interstitial cystitis manifested at the 40 percent rate beyond February 13, 2005. In a noted dated February 14, 2005, the Veteran's second urologist noted her history and noted that she was fairly stable urologically. He noted further that the Veteran's nocturia was essentially nonexistent at that time. He did not note any further findings as concerned the Veteran's urine frequency. See 10/11/2008 Non-Government Facility, P. 3. In March 2005, the same urologist noted continued dysuria, pelvic pain, and irritative voiding symptoms. Id. P. 1. Hence, the Board finds that the evidence of record shows that the Veteran's disability ceased to manifest at the 40 percent rate as of the day prior, February 13, 2005. The Board finds further that the staged allowance allowed by the Board complies in full with the terms of the JMPR. As set forth below, the Board finds that the weight of the evidence shows that the Veteran's disability continued to manifest at the 20 percent rate until 2018. In an October 2009 VA examination, the Veteran reporting stinging of the vulva during urination, pain with urination (dysuria), and hematuria. She reported that a 2004 hysterectomy did not provide relief from the pelvic pain that she had been seeking treatment for. See 10/13/2009 VA Examination, 1st Entry. In a November 2011 VA examination, the Veteran reported symptoms of interstitial cystitis including dysuria and pelvic pain. The examiner noted that the disability did not cause urine leakage. See 11/16/2011 VA Examination. In a June 2013 VA urinary tract examination, the Veteran reported lower abdominal pressure. The examiner noted that the disability did not cause urine leakage, but that it did cause increased urinary frequency, with daytime voiding between 1 and 2 hours. See 06/04/2013 VA Examination, P. 1-4. In January 2017, the Veteran reported symptoms of interstitial cystitis including dysuria, urinary frequency, urgency, and occasional leakage. The examiner noted that though the disability caused occasional urine leakage, it did not require the wearing of absorbent material to handle this symptom. The examiner noted the disability caused increased urinary frequency, with daytime voiding between 1 and 2 hours and awakening 2 times during the night to void. See 01/30/2017 C&P Exam, P. 2. In accordance with the evidence and findings set forth above, the Board has considered a higher evaluation for the entire rating period on appeal but finds that except for the period January 29, 2004 to February 13, 2005, the evidence does not comport with a 40 percent evaluation, which describes a daytime voiding interval of less than one hour or awakening to void five or more times per night. Outside the excepted period, the Veteran's reported symptoms include consistent dysuria, pelvic pressure, urgency, frequency, and burning on urination, but there is no evidence of awakening to void at night 5 or more times. There is further very little specific evidence regarding how frequently during the day the Veteran voids, and her medical records do not reflect complaints of frequency such that it disrupts her daily activity. Rather, her complaints revolve around the pain associated with the disability. As such, the Board finds that the medical evidence in this case is best described by a 20 percent evaluation using the urinary frequency criteria for the period prior to January 29, 2004 and from February 14, 2005 to October 14, 2018, and 40 percent for January 29, 2004 to February 13, 2005. The Board has also considered higher evaluations under the voiding dysfunction criteria. Although the Veteran began to report some urine leakage and stress incontinence as her symptoms progressed more recently, it was not great enough to require the wearing of absorbent materials. Likewise, the Veteran only reported very occasional obstructive voiding, and it was not such that it required intermittent or continuous catherization. Accordingly, the Veteran's disability is best described by the urinary frequency criteria. After the Court remanded the case to the Board for further review, evidence was received that indicates that the Veteran's disability may have worsened. Specifically, a DBQ from the Veteran's private urologist notes that she must change absorbent materials 2 to 4 times a day. See 11/20/2018 Disability Benefits Questionnaire (DBQ) Veteran Provided. Hence, the period from October 15, 2018, corresponding to the date of the DBQ, is addressed in the Remand below. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The consensus of the parties in the JMPR was that the July 2015 Board remand was not fully complied with. Specifically, a January 2017 VA examiner opined that there was no objective evidence indicating that the Veteran's interstitial cystitis would present function impairments affecting physical or sedentary employment. On remand, the clinician must faithfully address all components set forth in the Board remand directive. 2. Entitlement to an initial evaluation higher than 20 percent for interstitial cystitis for the period beginning on October 15, 2018 is remanded. When there is evidence that a claimant's disability may have worsened, a current examination is required. The October 2018 DBQ is the first evidence that the Veteran wears absorbent materials due to leakage. Hence, a current examination is indicated. The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from April 14, 2021. 2. Schedule the Veteran for an examination with the January 2017 VA examiner (or an equally qualified clinician if the January 2017 VA physician is unavailable) to assess the severity of her interstitial cystitis. Request that the clinician assess and determine the current severity of the Veteran's interstitial cystitis. The clinician must consider the Veteran's lay report of her symptoms and the October 2018 DBQ submitted by her private urologist. As part of the examination, the clinician is asked to assess and opine on any work restrictions the Veteran may have due to her interstitial cystitis. As with the assessment of the current severity of the Veteran's interstitial cystitis, the clinician must take and consider the Veteran's lay history, to include how her disability impacts her ability to work. The clinician is asked to focus solely on the service-connected disability. A full explanation must be provided for all findings and opinions. Should the clinician mention or opine that the Veteran's disability does not preclude sedentary employment, the clinician must define the parameters of the sedentary employment envisioned. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.