Citation Nr: 22012133 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-39 898 DATE: March 2, 2022 ORDER Entitlement to a rating of 60 percent, but not higher, for bulbourethral stricture throughout the entire period of appeal is granted. Entitlement to a rating higher than 50 percent for adjustment disorder with depressed mood is denied. Entitlement to a rating higher than 10 percent for post-operative right Achilles tendonitis is denied. Entitlement to a rating higher than 10 percent for post-operative left Achilles tendonitis is denied. FINDINGS OF FACT 1. Throughout the entire period of appeal, the voiding dysfunction caused by the service-connected bulbourethral stricture has required the use of an appliance. 2. Throughout the period of appeal, the Veteran's adjustment disorder with depressed mood was not manifested by more than occupational and social impairment with reduced reliability and productivity. 3. Throughout the period of appeal, post-operative right Achilles tendonitis has been manifested by no more than moderate limitation of motion with no evidence of joint ankylosis or any other residual disability. 4. Throughout the period of appeal, post-operative left Achilles tendonitis has been manifested by no more than moderate limitation of motion with no evidence of joint ankylosis or any other residual disability. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 60 percent disability rating, the maximum schedular rating, for voiding dysfunction due to service-connected bulbourethral stricture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7518. 2. The criteria for entitlement to a rating higher than 50 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9440. 3. The criteria for entitlement to a rating higher than 10 percent for post-operative right Achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271. 4. The criteria for entitlement to a rating higher than 10 percent for post-operative left Achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1991 to November 2000. The Veteran appeared at a February 2017 hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. In July 2020, the Board remanded claims for service connection for a lumbar spine disability, a right knee disability, and a left knee disability for development. A September 2021 rating decision established service connection for a lumbar spine disability, a right knee disability, and a left knee disability. As the September 2021 rating decision fully granted the claims for service connection for a lumbar spine disability, a right knee disability, and a left knee disability, those issues are no longer on appeal. In July 2020, the Agency of Original Jurisdiction (AOJ) sent the Veteran and his attorney a letter requesting his authorization to acquire private medical records in regards to his appeal, to include the University of Arkansas for Medical Sciences Medical Center. No response from the Veteran is of record. In light of the efforts the AOJ made to obtain the Veteran's authorization to obtain private treatment records, the AOJ's obtaining and associating with the record the Veteran's VA treatment records, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the remand requests concerning the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability ratings shall be applied, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating higher than 30 percent for bulbourethral stricture prior to June 14, 2017, and higher than 60 percent as of June 14, 2017 The Veteran's bulbourethral stricture is rated under Diagnostic Code 7518, which rates urethral stricture based on voiding dysfunction under Ratings of the Genitourinary System - Dysfunctions. Under 38 C.F.R. § 4.115a, voiding dysfunction is rated with regard to urine leakage, frequency, or obstructive voiding. 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 rating. 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 rating. Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating. 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 rating. Urinary tract infection where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management warrants a 30 percent rating. A 60 percent rating is the highest rating available for any form of voiding dysfunction. Higher ratings of 80 and 100 percent are available in cases involving renal dysfunction. 38 C.F.R. § 4.115a. As there is no evidence or allegation of renal dysfunction in this case, those rating criteria will not be discussed. At a November 2010 VA examination, it was noted that in 1997, the Veteran underwent a urethroplasty with placement of a suprapubic cystomy and an indwelling Foley catheter. The Veteran stated that since the time of that surgery, the suprapubic catheter had been removed, but he had to self-catheterize in order to keep the area of structuring dilated. The Veteran stated that he self-catheterized on average of twice per week. He stated that on the day he catheterized he voided satisfactorily, and he usually was able to void for two days following the catheterization before he noticed a decrease in the caliber and force of stream, and then he dilated again. The examiner diagnosed urethral stricture, status post remote urethroplasty, requiring ongoing self-catheterization. The examiner opined that the Veteran's self-catheterizations would need to continue on a regular basis into the future. In October 2016, the Veteran had a suprapubic catheter surgically inserted. On VA examination in January 2017, it was noted that the Veteran had a voiding dysfunction due to a stricture of the urethra. The Veteran's voiding dysfunction required the use of an appliance. He had an in-dwelling catheter with drainage to a foley bag. The Veteran had a daytime voiding interval between one and two hours and nighttime awakening to void three to four times. The Veteran experienced hesitancy, slow stream, weak stream, decreased force of stream, and a need to self-catheterize four times a week to drain the bladder and dilate the urethra. The examiner specified that the Veteran had urinary retention which required continuous catheterization. The Veteran had experienced two urinary infections in the prior year which were treated with antibiotics. In January 2017, the Veteran underwent a urethroplasty. At a February 2017 Board hearing, the Veteran stated that he had to self-catheterize at times. He had undergone two urethroplasties. He stated that there were times that he had urinated and defecated on himself if he could not get to a toilet. He carried a pad in his bag, but he tried not to wear it in public. At a June 2017 VA examination, it was noted that the Veteran had undergone two urethroplasties. He had most recently had surgery in January 2017. The Veteran had a voiding dysfunction as a result of stricture that required absorbent material which must be changed more than four times per day. The voiding dysfunction did not require the use of an appliance. Concerning urinary frequency, the Veteran's daytime voiding interval was less than one hour, and nighttime awaking to void was five or more times. The examiner indicated that there was no history of recurrent symptomatic bladder or urethral infections. At a September 2019 VA examination, the Veteran reported experiencing urinary frequency. It was noted that the Veteran had a voiding dysfunction which caused urine leakage that required absorbent material which must be changed two to four times per day. The voiding dysfunction did not require use of an appliance. The urinary frequency caused nighttime awakening to void three to four times per night. The examiner marked that the veteran did not have a history of recurrent bladder or urethral infections related to the bulbourethral stricture. The examiner remarked that the Veteran had frequent daytime voiding that required access and close proximity to a restroom. At a March 2021 VA examination, the examiner diagnosed bulbar urethral stricture. It was noted that the disability caused urine leakage that required absorbent material which must be changed more than four times per day. The voiding dysfunction did not require the use of an appliance. Increased urinary frequency caused a daytime voiding interval between one and two hours, and a night time awakening to void five or more times. The Veteran experienced hesitancy, slow stream, and decreased force of stream. The Veteran's stricture disease required dilation every two to three years. The Veteran also experienced recurrent urinary tract infections. The examiner noted that the urinary tract infections caused no episodes of drainage and no episodes of intermittent intensive management over the past 12 months. There were no scars related to the Veteran's condition. The Veteran's service-connected bulbourethral stricture has been rated at 30 percent prior to June 14, 2017, and at 60 percent as of June 14, 2017. The Board finds that a 60 percent rating is warranted throughout the entire period of appeal. The Board finds that the competent, credible, and probative lay and medical evidence of record, as described above, shows that the Veteran has had continual urine leakage and incontinence throughout the period on appeal. This leakage and incontinence have required the Veteran to both self-catheterize, as described by the November 2010 VA examiner, and to have a suprapubic catheter surgically inserted in October 2016. The January 2017 VA examiner described the in-dwelling catheter as a required appliance to treat the Veteran's voiding dysfunction. Although the in-dwelling catheter was later removed, at that point, the Veteran required the use absorbent materials, which must be changed more than four times in a day, as noted by the June 2017 and September 2019 VA examiners. Accordingly, due to the required use of an appliance, followed by the use of absorbent materials which must be changed more than four times in a day, the Board finds that a 60 percent rating, the maximum schedular rating allowable, is warranted for the entire appeal period. The Board finds that a disability rating in excess of 60 percent for the urethral stricture disability is not warranted at any point during the period on appeal. The highest schedular rating available for disabilities manifested by voiding dysfunction is 60 percent. The Veteran's disability has been rated based on urine leakage. The highest available ratings for voiding dysfunction under the criteria for urinary frequency and obstructed voiding are 40 percent and 30 percent, respectively. Higher disability ratings may be warranted in cases involving renal dysfunction. However, in this case the evidence does not demonstrate, nor does the Veteran allege, that the disability is manifested by any renal dysfunction. Therefore, a 60 percent rating, the maximum rating allowable, is warranted for the entire appeal period. The Board finds that the weight of the evidence is against the assignment of any higher rating. Therefore is no reasonable doubt to resolve in favor of the evidence regarding the assignment of any higher rating and the evidence is not in relative equipoise. 2. Entitlement to a rating higher than 50 percent for adjustment disorder with depressed mood Psychiatric disabilities other than eating disorders are rated pursuant to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affected the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in the rating formula are only examples, and evidence of those specific symptoms is not required to show that the Veteran is totally disabled. In rating a mental disability, VA is required to consider all symptoms that affect social and occupational functioning, and not limit consideration to those symptoms listed in the rating formula. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary consideration is whether the manifestations of the service-connected psychiatric disability result in a level of social and occupational impairment, regardless of whether the Veteran demonstrates the specific symptoms listed in the rating formula. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The VA treatment records show generally that the Veteran has undergone counseling and group therapy. At a January 2011 VA examination, the Veteran reported that he could not complete simple tasks. He stated that he got about six hours of sleep a night. He felt moderately depressed. He enjoyed volunteering at church. He denied suicidal or homicidal ideation. The examiner found the Veteran to be casually groomed. The Veteran's speech was within normal limits. Thought processes and associations were logical and tight. Memory was grossly intact. No hallucinations or delusions were noted. The Veteran's insight and judgment were adequate. The examiner described the Veteran's symptoms as mild to moderate. At a May 2013 VA examination, the examiner stated that the Veteran's symptoms were best summarized as not being severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran lived with his wife and two of his children. He slept six to seven hours a night on average. No daytime sleepiness was noted. The examiner recorded that the Veteran enjoyed going to restaurants, church, and movies. It was further noted that the Veteran was depressed and experienced disturbances of motivation and mood. At a February 2017 Board hearing, the Veteran stated that he was depressed. He found it easier to be alone. He did not like crowds. There were times that he felt overwhelmed. At a September 2019 VA examination, the examiner diagnosed adjustment disorder with depressed mood. The examiner stated that the Veteran's symptoms were best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran lived with his wife of approximately nine years, and he and his wife got along well. The veteran spent most of his time watching television and doing projects around the house. The Veteran kept in touch with his children and grandchildren. They had family dinners approximately one time per month. They attended church frequently. The Veteran reported that when he felt slighted, he stayed angry for some time. The Veteran reported that he stopped working due to the physical aspects of his job. The Veteran reported getting approximately six to seven hours of sleep per night. He reported occasional daytime fatigue. The veteran noticed having problems with attention and concentration. He stated that he used his phone to serve as a reminder by taking notes. The Veteran denied having any plans to harm himself or others. The examiner stated that the Veteran had a depressed mood, and mild memory loss, such as forgetting names, directions, or recent events. The Veteran's clothing appeared clean, and hygiene was adequate. The Veteran's conversation was fluid and logical. There was no evidence of delusional or disorganized thought content. No speech impairments were noted. Throughout the period of appeal, the Board finds that a rating higher than 50 percent is not warranted. The competent medical evidence of record does not show the Veteran had any speech issues, continuous panic attacks, spatial disorientation, actual neglect of personal hygiene, or an inability to maintain effective relationships. Moreover, there is no evidence of suicidal or homicidal ideation at any time. Medical records consistently show that he was always appropriately dressed and adequately groomed, cooperative, oriented, and with normal speech, thought process, and judgment. The most recent VA examiner in September 2019 assessed the Veteran as meeting the criteria for a 30 percent rating under VA's Schedule for Rating Mental Disorders. The Board places great weight on the outpatient treatment records and the examination reports from the VA examiners, as they were created by objective medical personnel in the process of providing professional care to the Veteran. In short, the Board finds that for the pertinent period on appeal, the weight of probative evidence does not show that the Veteran's adjustment disorder with depressed mood more nearly approximates the criteria for the next higher rating of 70 percent requiring deficiencies in most areas. Thus, as the preponderance of the evidence is against the claim for a higher than 50 percent rating, the claim for an increased rating must be denied. The Board finds that the evidence is not in relative equipoise regarding entitlement to a higher rating, and there is no reasonable doubt to resolve in favor of the Veteran. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a rating higher than 10 percent for post-operative right Achilles tendonitis 4. Entitlement to a rating higher than 10 percent for post-operative left Achilles tendonitis Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. For the foot, with a 90 degree angle to the ankle as the neutral or starting position, a normal or full range of ankle motion is defined as from 0 degrees to 20 degrees of dorsiflexion and from 0 degrees to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5271 provides that limitation of motion of an ankle warrants a 10 percent rating when moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and 20 percent when marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a. The terms moderate, moderately severe, and marked, as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that Board decisions are equitable and just. 38 C.F.R. § 4.6. The VA treatment records show generally that the Veteran has been treated for pain of both ankles. At an October 2010 VA examination, the Veteran reported experiencing pain that was a zero at rest and up to six to seven with prolonged walking. He used shoe inserts. The examiner observed that the Veteran was able to walk normally and with a normal gait. Ankle range of motion was "dorsiflexion 15, plantar flexion 50, inversion 15 on the right, 10 on the left, eversion 0." Both ankles were stable. The examiner found no pain with manipulation, and there were no sole lesions. On January 7, 2016, the Veteran underwent left ankle surgery. In March 2016, the AOJ assigned a temporary total rating under the provisions of 38 C.F.R. § 4.30 for the post-operative left Achilles tendonitis based on surgical or other treatment necessitating convalescence, effective from January 7, 2016, to May 1, 2016. On November 10, 2016, the Veteran underwent right ankle surgery. In October 2017, the AOJ assigned a temporary total rating under the provisions of 38 C.F.R. § 4.30 for the post-operative right Achilles tendonitis based on surgical or other treatment necessitating convalescence, effective from November 10, 2016, to February 28, 2016. The AOJ also granted entitlement to special monthly compensation at the housebound rate, effective from November 10, 2016, to March 1, 2017. At a February 2017 Board hearing, the Veteran stated that his normal gait had changed. He experienced pain. At a September 2019 VA examination, the Veteran reported that he experienced pain to his heels when he wore shoes. He stated that he was unable to walk or stand for prolonged periods of time while wearing shoes with closed heels. The examiner measured right and left ankle plantar flexion to 40 degrees and dorsiflexion to 15 degrees with pain on both active and passive testing. There was no evidence of pain with weight bearing or non-weight bearing. There was no additional loss of range of motion of either ankle on repetitive use testing. The examiner estimated that there would be no additional loss of range of motion following repetitive use over time or during flare ups of either ankle. There was no muscle atrophy or ankylosis of either ankle. There was no instability or dislocation suspected of either ankle. At a March 2021 VA examination, the Veteran reported flare-ups of the right and left ankles two to three times a week. The flare-ups were alleviated by stretching. The Veteran experienced difficulty with prolonged walking, standing, balance, and going up and down stairs, ladders, and inclines. The Veteran stated that that ankles rolled for no reason. The examiner observed that the active and passive range of motion measurements for the right and left ankles were all normal. Pain was noted on plantar flexion and dorsiflexion of both ankles on both active and passive motion. The pain did not result in or cause functional loss of either ankle. There was no additional loss of range of motion after repetitive use testing of either ankle. The examiner estimated that after repeated use over time, plantar flexion would be to 35 degrees, and dorsiflexion would be to 15 degrees for both ankles. During flare-ups, the examiner estimated that plantar flexion would be to 25 degrees, and dorsiflexion would be to 10 degrees for both ankles. There was no muscle atrophy or ankylosis. The Veteran reported experiencing severe pain on ambulation. The examiner opined that the Veteran would be unable to perform job duties that required prolonged walking, standing, climbing stairs, climbing ladders, going up inclines, or that would require good balance. Collectively, the evidence of record shows that throughout the entire period of appeal the Veteran's right and left post-operative Achilles tendonitis were manifested by a normal range of motion, as described as such by the VA examiners of record, and not meeting the numerical limitation of motion in degrees required for a higher rating, even with consideration of other functionally limiting factors, or on flare up. While the Veteran has asserted that his residuals include severe pain, the objective examination findings did not show that the level of severity caused by the pain resulted in limitation of motion that would warrant any higher rating for either ankle. The objective evidence demonstrates a normal range of motion. The Board finds that level of motion does not constitute marked limitation of ankle motion, as required for a higher 20 percent rating for either ankle under the appropriate Diagnostic Code, or ankylosis as required for any higher rating. Even considering the objective evidence of swelling, tenderness, and painful motion in the right and left ankles, and functional loss due to increased pain and weakness during flare-ups associated with prolonged walking and standing, the current 10 percent rating for each ankle accounts sufficiently for that symptomology. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The pain on motion, other limiting factors, and limitations during flareups have been considered in assigning the current 10 percent rating for each ankle. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating higher than 10 percent for either right or left post-operative right Achilles tendonitis, and the claims must be denied. The Board finds that the evidence is not in relative equipoise regarding entitlement to a higher rating and there is no reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.