Citation Nr: 21040680 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-55 319 DATE: July 6, 2021 ORDER Entitlement to an initial disability rating in excess of 40 percent for prostate cancer, status post prostatectomy, is denied. Entitlement to an initial compensable disability rating for erectile dysfunction is denied. FINDINGS OF FACT 1. Symptoms of the residuals of prostate cancer include increased urinary frequency manifested by the need to urinate between 2 and 3 hours during the day and 3 to 4 times per night and a voiding dysfunction manifested by the use of absorbent materials which need to be changed 2 to 4 times per day. 2. The Veteran's erectile dysfunction is productive of loss of erectile power for which he receives special monthly compensation; however, there is no associated penile deformity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 40 percent for prostate cancer, status post prostatectomy have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for entitlement to an initial compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1-4.14, 4.115b, DC 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1973 to November 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in July 2020 at which time the Veteran testified before the undersigned Veterans Law Judge, followed by both matters being remanded for new examinations in November 2020. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that in a subsequent April 2021 rating decision, the RO increased the Veteran's initial rating for residuals of his prostate cancer (status post prostatectomy) from 0 percent to 40 percent, effective January 23, 2014, one year prior to date of receipt of his claim. Since this is a partial grant and the Veteran's claim seeking an initial compensable rating for erectile dysfunction remains denied, both matters have been returned to the Board for further adjudication. INCREASED RATING FOR RESIDUALS OF PROSTATE CANCER The Veteran's prostate cancer is currently assigned a 40 percent evaluation pursuant to 38 C.F.R. § 4.115b under Diagnostic Code (DC) 7528 which provides that after treatment for malignant neoplasms of the genitourinary system, if there has been no local recurrence, the symptoms should be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. Under obstructed voiding conditions, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted 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 demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id. In cases with renal dysfunction, alternative ratings may be assigned. 38 C.F.R. § 4.115a. A higher rating is also warranted for renal dysfunction if there is constant albuminuria with some edema or there is a definite decrease in kidney function or there is hypertension at least 40 percent disabling under DC 7101. 1. Entitlement to an initial disability rating in excess of 40 percent for prostate cancer, status post prostatectomy. The Veteran was granted service connection for his claim in a July 2015 rating decision, effective January 23, 2014. He was originally awarded an initial noncompensable rating based on the findings of his initial VA examination, which reflects that the requirements for a compensable evaluation were not met. During the Veteran's initial Male Reproductive System Conditions examination in July 2015, the examiner reported that the Veteran has a voiding dysfunction as a result of his prostate cancer and treatment, but that his voiding dysfunction did not cause leakage, require the use of an appliance or cause increased urinary frequency; that the Veteran has voiding dysfunction that cause signs or symptoms of obstructed voiding, specifically, hesitancy; no other obstructive symptoms were noted. The Veteran's 2006 diagnosis of erectile dysfunction (ED) secondary to prostate cancer and treatment was noted. The specific findings of the severity of his ED are discussed separately in addressing his increased rating claim for ED in the latter part of this decision. The Veteran's medical treatment record includes an October 2015 letter from the Veteran's treating physician who noted that the Veteran has a history of prostate cancer and underwent robotic prostatectomy in 2006, and that since the surgery he continues to have erectile dysfunction and intermittent urinary stress incontinence. During a February 2016 consolation they following notations were made: "[e]rectile dysfunction, normal libido: pt advised to use either Viagra or Cialis but not both; prostate cancer: normal rectal, no nodules, pending psa. no longer being followed by outside uro, offered that through here." Ongoing Active Outpatient Medications show that the Veteran is prescribed Sildenafil Citrate 100MG Tablet as directed for Erectile Dysfunction. Pursuant to the November 2020 Board remand, the Veteran received a VA Male Reproductive System Conditions examination in April 2021. The examiner reported that the Veteran had a voiding dysfunction that causes leakage that requires absorbent material which must be changed 2 to 4 times per day; that it did not, however, cause signs or symptoms of obstructed voiding or any other obstructive symptoms; that the Veteran does not have a history of recurrent symptomatic urinary tract or kidney infections; his existing ED diagnosis was noted. The examiner also reported that the Veteran's prostate cancer did not impact his ability to work. Urinary incontinence was noted as another residual condition and/or complications due to the Veteran's prostate cancer or treatment for prostate cancer. Significant diagnostic test findings and/or results with regards to urinalysis were noted. With regard to urinary frequency, the examiner reporter daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times. The Board has also considered the Veteran's lay statements that his disabilities are worse, including his testimony with regards to the increase in his symptomology during his Board hearing in July 2020; specifically, that he is experiencing leakage at the rate of as many as 10 to 12 times a month, and he is mostly affected at night, and has had to put on pads on his bed. With regards to his ED, he also testified that he sometimes uses a vacuum pump, which he bought. The Board notes that these reports of his increased symptoms were incorporated in the Veteran's April 2021 examination, and to that extent his rating was increased from 0 percent to 40 percent throughout the appeal period. As the evidence does not show that the Veteran experiences obstructed voiding, the Board will consider a higher rating based on urine leakage conditions and urine frequency. In cases of urine frequency, a 20 percent disability rating is warranted for a daytime voiding interval between one and two hours; or, awakening to void three to four times per night. As reported during his April 2021 VA examination, the Veteran's voiding dysfunction cause increased urinary frequency of daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times. As such, his reported symptoms fall squarely within a 20 percent rating evaluation under this criterion. Based on the Veteran's urine leakage symptoms (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. Here, the April 2021 VA examination reports reflects that the Veteran's disability requires him to wear absorbent material which must be changed 2 to 4 times per day. Although the maximum rating is 60 percent for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, this has not been shown in this case, as it is specifically reported that the Veteran's voiding dysfunction does not require the use of an appliance and as previously noted, the Veteran has reported the need to change absorbent materials 2 to 4 times per day. As such, a 40 percent disability rating is most nearly approximated for voiding dysfunction based on the urine leakage criterion. The Board notes that this is a higher rating compared to the 20 percent rating under the urinary frequency criterion previously referenced, and in such cases, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115a. In cases of obstructed voiding, a maximum schedular evaluation of 30 percent is warranted where there is urinary retention requiring intermittent or continuous catheterization. This is not applicable in this case since the record reflects that the residuals of the Veteran's prostate cancer do not include signs or symptoms of obstructed voiding or any other obstructive symptoms. A higher rating is also not warranted for renal dysfunction, since no record of such is reflected in any of the Veteran's VA examinations or treatment records. Based on review of the evidence, the Board finds that the evidence is against a rating in excess of 40 percent beginning January 13, 2014, for residuals of prostate cancer. The Board notes that a higher disability rating is not available under the criteria for urinary frequency, and the evidence does not support a higher rating based on urinary leakage. In denying a rating higher than 40 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As discussed above, there is no evidence of any of the symptoms enumerated in the criteria for the next higher rating of 60 percent rating. Consequently, entitlement to a rating in excess of 40 percent for prostate cancer, status post prostatectomy, for the entire period of appeal must therefore be denied. 2. Entitlement to an initial compensable disability rating for erectile dysfunction. The Veteran was also granted service connection for erectile dysfunction in the previously referenced July 2015 rating decision and was assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under that diagnostic code, a 20 percent evaluation is warranted for a deformity of the penis with loss of erectile power. The Board notes that this has not been shown in this case. During the Veteran's initial July 2015 VA examination, the VA examiner noted that the Veteran had erectile dysfunction and he was unable to achieve an erection sufficient for penetration and ejaculation without medication. However, the examiner also noted that the Veteran was able to achieve an erection with medication, and retrograde ejaculation was not reported. No other residual conditions and/or complications due to prostate cancer or treatment for prostate cancer was reported, including renal dysfunction. Per the Veteran's request, no physical examination was performed upon his penis, testes, epididymis and prostrate. Similar findings were reported during the Veteran's April 2021 VA examination. The VA examiner noted that the Veteran had erectile dysfunction and he was unable to achieve an erection sufficient for penetration and ejaculation without medication. Physical examination of the Veteran's penis was performed during this examination, in compliance with November 2020 Remand order, following which Veteran's penis was reported to be normal. The examiner noted that the Veteran reported that medications did not work, and neither did the penis pump. However, the examiner reported no penile deformity. Therefore, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for his service-connected erectile dysfunction throughout the appeal period. The Board also observes that the Veteran is already in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114(k) based on the loss of use of a creative organ for his erectile dysfunction. Thus, the Veteran is compensated for his erectile dysfunction and any associated symptoms. Therefore, the Board finds that the weight of the evidence is against a compensable evaluation for erectile dysfunction. As such, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate 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.