Citation Nr: 21041832 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-00 144 DATE: July 10, 2021 ORDER A rating in excess of 40 percent for residuals of prostate cancer prior to November 14, 2019, is denied. A rating of 60 percent for residuals of prostate cancer as of November 14, 2019, is granted, subject to the controlling regulations governing the payment of monetary benefits. A compensable rating for erectile dysfunction (ED) is denied. FINDINGS OF FACT 1. Prior to November 14, 2019, the Veteran's prostate cancer residuals were primarily manifested by voiding dysfunction requiring the use of absorbent materials that that must be changed two to four times per day. 2. As of November 14, 2019, the Veteran's prostate cancer residuals are primarily manifested by voiding dysfunction requiring the use of absorbent materials that that must be changed more than four times per day. 3. The Veteran's penis is medically unremarkable and has no deformity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of prostate cancer prior to November 14, 2019, 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 7527, 7528. 2. The criteria for a rating of 60 percent, but no higher, for residuals of prostate cancer as of November 14, 2019, have 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 7527, 7528. 3. 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 November 1967 to April 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) that reduced the rating of the Veteran's prostate cancer residuals from 100 percent to 40 percent, effective August 1, 2015. The Veteran appealed the rating reduction. The appeal was denied by the Board in December 2018. At that time, the issues of entitlement to a rating in excess of 40 percent for residuals of prostate cancer from August 1, 2015, and the issue of entitlement to a compensable rating for ED were remanded. The issues have now been returned for further appellate consideration. Increased Rating Entitlement to a rating in excess of 40 percent for residuals of prostate cancer Service connection was granted for prostate cancer by rating decision dated in November 2014. An initial rating of 100 percent was assigned in accordance with Diagnostic Code (DC) 7528. The rating was reduced to 40 percent as of August 1, 2015. The reduction was upheld in a December 2018 decision of the Board. 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 2015. At that time, the diagnosis was prostate cancer that had been diagnosed in 2014. The disease was indicated to be in remission, and it was noted that the Veteran had completed treatment and was currently in a watchful waiting status. He had residuals of voiding dysfunction with urine leakage that required absorbent material that needed to be changed two to four times per day. He did not require the use of an appliance or cause increased urinary frequency. He did have symptoms of a slow stream and decreased force of stream. There were no other obstructive symptoms. There was no urinary tract or kidney infection. There were no other residual conditions or complications, including renal dysfunction. His prostate cancer was not noted to have functional impact on his ability to work. Another examination was conducted by VA on November 14, 2019. The examiner noted that records review showed the prostate cancer was confirmed by biopsy in April 2014. The Veteran was treated with a prostatectomy in August 2014, but did not undergo radiation or hormonal therapy. He had been in remission since that time. He had documented stress urinary incontinence with nocturia since the prostatectomy. The Veteran reported that he was changing pads six times per day, but denied daytime urinary frequency. He reported nocturia four times per night. He stated he had one urinary tract infection six months ago, but there was no documentation of this infection. The Veteran's disease was described as being in remission. His treatment was completed, and he was currently in a watchful waiting status. He had voiding dysfunction causing urine leakage requiring absorbent material to be changed more than four times per day. The use of an appliance was not required. He had night-time awakening to void three to four times per night. There were no signs of obstructive symptoms or of kidney infection. There was no functional impact on the Veteran's ability to work as a result of the Veteran's prostate cancer residuals. For the period prior to November 14, 2019, the record shows that the Veteran's prostate cancer residuals were primarily manifested by voiding dysfunction requiring the absorbent material to be changed between two and four times per day. While he also had complaints of obstructive voiding, this is not shown to be the predominate area of dysfunction and does not serve as a basis for a rating in excess of the 40 percent that was assigned. 38 C.F.R. § 4.115a. Under these circumstances, the Board can find no basis for a rating in excess of the assigned 40 percent prior to November 14, 2019. On November 14, 2019, the VA examiner noted that the Veteran had voiding dysfunction that required the use of absorbent materials that needed to be changed more than four times per day. This meets the criteria for a 60 percent rating for prostate cancer residuals. Therefore, the 60 percent rating is assigned from November 14, 2019, the date of the VA examination. As for whether a still higher rating is warranted, the Board notes that 60 percent is the highest rating available for voiding dysfunction and there are no higher ratings available by rating the Veteran's disability according to urinary frequency. 38 C.F.R. § 4.115a. Entitlement to 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. He has asserted that all attempts to treat his ED have been unsuccessful. He has also asserted that he should be awarded special monthly compensation (SMC) for loss of use, but it is noted that this was awarded by rating decision in February 2015. 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, as addressed above, in addition to the noncompensable evaluation assigned for the Veteran's erectile dysfunction, he has been found entitled to SMC on account of the loss of use of the creative organ. SMC is not an issue currently before the Board. After reviewing the record, the Board finds the Veteran's penis is medically unremarkable. First, the Veteran does not claim, nor does the evidence show, a penile deformity. Second, the November 2019 VA compensation examiner, while detailing the history of the Veteran's erectile dysfunction, did not report that the Veteran had any penile deformity. At that time, the examiner stated that the Veteran's ED had no effect on his ability to function in any occupational environment or activities of daily living. Based on the foregoing, the Veteran does not merit a 20 percent rating under Diagnostic Code 7522, and the Board will deny the appeal. The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. As noted, the Veteran has not complained of having penile deformity and the VA examination in 2019 found no interference with employment as a result of his ED For this reason, the Board finds that the assigned schedular rating is adequate to rate the Veteran's ED, and no referral for an extraschedular rating is required. 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.