Citation Nr: 21032221 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-29 535 DATE: May 26, 2021 ORDER For the initial rating period from August 1, 2011 to June 27, 2012, a higher (compensable) disability rating for prostatitis is denied. For the initial rating period from June 27, 2012, a disability rating in excess of 40 percent for prostatitis is denied. FINDINGS OF FACT 1. For the initial rating period from August 1, 2011 to June 27, 2012, the prostatitis did not manifest as urinary frequency with daytime voiding interval between two and three hours or awakening to void two times per night. 2. For the initial rating period from June 27, 2012, prostatitis has not manifested as greater than daytime voiding intervals between less than one hour, or awakening to void five or more times per night. CONCLUSIONS OF LAW 1. For the initial rating period from August 1, 2011 to June 27, 2012, the criteria for a higher (compensable) rating for prostatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.115a, 4.115b, Diagnostic Code 7527. 2. For the initial rating period from June 27, 2012, the criteria for a disability rating in excess of 40 percent for prostatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from August 1980 to February 1985 and August 2002 to July 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision from the Regional Office (RO), which granted service connection for prostatitis, assigning a noncompensable (0 percent) initial disability rating (effective August 1, 2011). In August 2019, the Board remanded the issue on appeal for additional development, including to associate any outstanding VA treatment records with the records, afford the Veteran the opportunity to submit or identify any outstanding private treatment records, and to obtain a VA examination. The Veteran has not identified any outstanding private treatment records pertaining to prostatitis. An examination and VA medical records were obtained. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the August 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Disability Rating Criteria 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 disability ratings shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for prostatitis. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Staged ratings have been assigned for the service-connected prostatitis of noncompensable (0 percent) from August 1, 2011 to June 27, 2012, and 40 percent from June 27, 2012 forward. 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 rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Rating Criteria for Diagnostic Code 7527 The Veteran's prostatitis is rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7527, for prostate gland injuries, infections, hypertrophy, or postoperative residuals. DC 7527 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. In accordance with 38 C.F.R. § 4.115a, a 10 percent rating for urinary tract infection is warranted when the disability requires long-term drug therapy, one to two hospitalizations per year, and/or requires intermittent intensive management. A 30 percent rating is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. Poor renal function due to urinary tract infection is to be rated as renal dysfunction. 38 C.F.R. § 4.115a. Also, under 38 C.F.R. § 4.115a, a voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. For urine leakage, a 20 percent rating is warranted for urinary leakage requiring the use of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for urinary leakage requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for urinary leakage requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. Id. Urinary frequency has ratings ranging from 10 to 40 percent. A 10 percent rating contemplates daytime voiding intervals between two and three hours, or; awakening to void two times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours, or; awakening to void three to four times per night. A 40 percent rating contemplates daytime voiding intervals of less than one hour, or; awakening to void five or more times per night. Id. Obstructed voiding has ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 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/sec; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. 1. Rating Prostatitis from August 1, 2011 to June 27, 2012 After reviewing all the evidence, lay and medical, the Board finds that the service-connected left prostatitis has not approximated the criteria for a compensable (10 percent) disability rating, that is, daytime voiding intervals between two and three hours, or; awakening to void two times per night. By way of history, the service treatment records show that the Veteran was treated for acute prostatitis in September 2003, as he has developed a mild case of dysuria due to a bacterial infection. The condition was treated with a short-term course of antibiotics with no apparent residual sequalae at the time. In subsequent years, service treatment records show that the Veteran denied any genitourinary symptoms, to include urinary frequency, urinary urgency, urinary loss of control, dysuria, and flank pain. See September 2003, February 2007, March 2008, November 2009, September 2010, April 2010 service treatment records. Since service separation, the record does not indicate that the Veteran received any additional private or VA treatment for symptoms of prostatitis. A VA examination was provided in April 2011. At the time, the Veteran reported an onset of prostatitis in 2005, although the record indicates that this condition occurred in 2003. The Veteran noted that the episode of prostatitis was treated with antibiotics and has been stable since then with no recurrent treatment or symptoms. The examination report indicates that the Veteran denied any general systemic symptoms due to genitourinary disease, and denied urinary symptoms, including urinary leakage and a history of urinary tract infection. The examiner diagnosed acute prostatitis, for which there was no significant effects and no problems with usual daily activities. See April 2011 VA examination report. For the foregoing reasons, the Board finds that a higher (compensable) rating is not warranted for the service-connected prostatitis for the initial rating period from August 1, 2011 to June 27, 2012. The evidence during the relevant period does not show that the Veteran experienced voiding dysfunction with daytime voiding intervals between two and three hours, or; awakening to void two times per night. Additionally, both the service treatment records and the April 2011 VA examination report indicate that the Veteran had an acute episode of prostatitis in 2003 during service that was treated with a short course of antibiotics, and that the Veteran thereafter denied any problems with urinary frequency, urinary urgency, dysuria, urinary tract infections, urethral discharge, or any voiding dysfunction or urinary symptoms thereafter. This same evidence shows that prostatitis has not met or approximated the criteria for a compensable 20 percent rating for urinary leakage as the evidence does not note indicate that the Veteran's prostatitis has required the use of absorbent materials which must be changed less than two times per day. The prostatitis also has not manifested as marked obstructive symptomatology, such as hesitancy, slow or weak stream, decreased force of stream, with post void residuals greater than 150 cc; uroflowmetry, markedly diminished peak flow rate less than 10 cc/sec; recurrent urinary tract infections secondary to obstruction; and/or stricture disease requiring periodic dilatation every two to three months. Moreover, the evidence does not establish that the Veteran has experienced a urinary tract infection managed with long-term drug therapy, 1-2 hospitalizations per year, or required intermittent intensive management during the relevant rating period. Additionally, the evidence during the pertinent rating period does not indicate that the prostatitis has caused any renal dysfunction, as such the rating criteria for renal dysfunction is not applicable. 38 C.F.R. § 4.115a. As the preponderance of the evidence is against the claim, the appeal for a higher (compensable) disability rating for prostatitis from August 1, 2011 to June 27, 2012 must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115(a), 4.115(b), DC 7527. 2. Rating Prostatitis from June 27, 2012 During the course of this appeal, the RO granted a higher 40 percent rating for prostatitis from June 27, 2012 based on voiding dysfunction with daytime voiding intervals of less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. See August 2020 rating decision. After reviewing all the evidence, lay and medical, the Board finds that the service-connected prostatitis has not manifested as greater than daytime voiding intervals between less than one hour, or; awakening to void five or more times per night. In a Notice of Disagreement (NOD) received June 27, 2012, the Veteran indicated that he experienced daytime voiding intervals anywhere from 45 minutes to one hour, but no greater, and that he has to get up at least once a night for a bathroom break. See June 27, 2012 (NOD). The evidence of record does not indicate that the Veteran received any private or VA treatment for prostatitis during the relevant rating period. A VA examination was provided in January 2020. At the time the Veteran reported that the condition started years ago as a urinary tract infection and was treated with medication. The Veteran denied any current treatment with continuous medication. The Veteran reported that his current symptoms consisted of requiring a bathroom break every 45 minutes or so during the day and two to three times at night. The VA examiner assessed that prostatitis manifested as urinary frequency with daytime voiding interval less than 1 hour, or nighttime awakening 3-4 times. The condition did not require wearing absorbent material or the use of an appliance. Additionally, there was no obstructed voiding or renal dysfunction associated with the prostatitis. See January 2020 VA examination report. Based on the evidence of record during this period, the Board finds that a rating in excess of 40 percent is not warranted. The Board has considered the Veteran's contention through his representative that he should be awarded a rating in excess of 40 percent rating. See April 2021 representative brief. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board affords more probative weight to the lay statement made in the June 2012 NOD and January 2020 VA examination report, that the prostatitis has manifested as urinary frequency with daytime voiding intervals less than one hour or awakening to void up to 3-4 times per night. Neither the lay or medical evidence indicates that the Veteran has experienced urine leakage that requires the use of an appliance or wearing absorbent materials that must be changed 2 to 4 times a day during the relevant rating period. As such, a higher rating of 60 percent is not warranted based urinary leakage. Moreover, the VA examiner noted that the prostatitis has not caused renal dysfunction, as such as higher 60 percent rating based on renal dysfunction is not applicable. 38 C.F.R. § 4.115a. For these reasons, a rating in excess of 40 percent for prostatitis after June 27, 2012 must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115(a), 4.115(b), DC 7527. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.