Citation Nr: 22014490 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-15 366 DATE: March 14, 2022 ORDER Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer prior to April 8, 2021, is denied. Entitlement to an initial compensable rating for erectile dysfunction is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II is denied. FINDINGS OF FACT 1. Prior to April 8, 2021, the Veteran's residuals of prostate cancer, which was in remission, were characterized by daytime voiding intervals between one and two hours, nighttime awakening twice to void, and erectile dysfunction. The persuasive evidence is against finding that the Veteran had any more frequent voiding dysfunction during the daytime or nighttime. 2. The Veteran's erectile dysfunction is characterized by being unable to achieve an erection sufficient for penetration and ejaculation without medication and without deformity of the penis. 3. The Veteran's diabetes mellitus required only restricted diet and one or more daily injection of insulin or oral hypoglycemic agents during the entire period on appeal, and it has not required avoidance of strenuous occupational and recreational activities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for residuals of prostate cancer prior to April 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4115a, 4.115b, Diagnostic Code 7527 (2020, 2021). 2. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.115b, Diagnostic Code 7522 (2020, 2021). 3. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1969 to February 1971. These matters come to the Board of Veterans' Appeals (Board) from April 2013 and July 2015 rating decisions by the Regional Office of the Department of Veterans Affairs (VA). This case was previously before the Board in October 2019, at which point the Veteran's claims were denied. The Veteran appealed the Board's October 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In October2020, the Court issued a Joint Motion for Remand setting aside the Board's October 2019 decision. These matters were the remanded by the Board in July 2021. The Board acknowledges that the July 2021 Board remand asked the April 2021 VA examiner to review the new records and to provide any corrections to his examination the former report. While additional treatment records were obtained, the VA examiner did not specifically discuss whether these records indicated that revision of the prior examination findings was warranted. Although the VA examiner failed to directly respond to the Board's questions, the examiner instead provided entirely new VA examination reports, which the Board finds provides more than sufficient information to decide the claims at this time, and there has therefore been substantial compliance with the intent of the prior remand directives. See Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998) Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate "staged" ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence persuasively favors against granting the claim, in which case the claim is denied. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent Congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. 1. Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer prior to April 8, 2021 The Veteran contends his prostate cancer should be rated at higher than 20 percent disabling prior to the April 8, 2021, which is the date that he was assigned a 100 percent rating. The Board notes that the criteria for rating genitourinary system disabilities have changed once during the period covered by this appeal, effective September 30, 2021. Prior to the award of a 100 percent rating, the Veteran was assigned 20 percent under Diagnostic Code 7527. The Veteran had been rated under Diagnostic Code 7527, for prostate gland injuries, infections, hypertrophy, postoperative residuals, because his prostate cancer had been found to be in remission. This is not contested by the Veteran or the evidence. The 100 percent rating was assigned under Diagnostic Code 7914 due to a finding of active malignancy. See 38 C.F.R. § 4.119, Diagnostic Code 7914. There is no evidence prior to April 8, 2021, that the Veteran had any active malignancy during the period on appeal, and therefore this diagnostic code does not apply. Before the September 30, 2021 revision to Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, postoperative residual were to be rates under voiding dysfunction or urinary tract infection. The post-September 30, 2021 revision only added bladder outlet obstruction to the list of conditions to be rated. Voiding dysfunctions are rating under 38 C.F.R. § 4.115a and remained unchanged by the September 30, 2021 revision. The rating criteria for urinary tract infections under 38 C.F.R. § 4.115a was updated. However, the amendments are inconsequential because the evidence of record does not warrant rating under the amended provisions of Diagnostic Code 7527 and 38 C.F.R. § 4.115a. As such, the same criteria for applies for the entire period on appeal. Voiding dysfunction is rated based on symptoms of urine leakage, frequency, or obstructed voiding. Disability percentage is based on the highest rating of the three. Voiding dysfunction for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence warrants a 60 percent disabling rating where the symptoms require the use of appliances or the wearing of absorbent materials which must be changed more than 4 times per day. A 40 percent disabling rating is warranted where urine leakage requires the wearing of absorbent materials which must be changed 2 to 4 times per day. Where the predominant symptom is urinary frequency, a 40 percent rating is warranted where daytime voiding interval less than one hour, or; awakening to void five or more times per night. For obstructed voiding, a 30 percent disabling rating is warranted where warranted for urinary retention requiring intermittent or continuous catheterization. The Board reviewed other Diagnostic Codes for the entire period on appeal but finds that none provide a higher rating in excess of 20 percent disabling. This includes the pre and post September 30, 2021 provisions of Diagnostic Code 7527 and 38 C.F.R. § 4.115a as there is no evidence that allows for a higher rating based on urinary retentions requiring intermittent or continuous catheterization or of urinary tract infections requiring more than two hospitalizations in a year, continuous intensive care management, long-term drug therapy, or drainage by stent or nephrostomy. The Veteran's records for the period from November 2015 to June 2018 were associated with the record. A review of the record shows does not show any additional, relevant evidence relating to the Veteran's prostate cancer was contained in the November 2015 to June 2018 record. As such, there is no evidence that was not considered in the initial November 2015 VA examination. The only mentions of the prostate are a September 2017 request by the Veteran to fax VA prostate results to the Veteran's private doctor, and then medical history notations, identifying ED since prostate surgery, prostate specific antigen (PSA) level at the time of prostate surgery, no prostate history in the family. As such, the new associated records do not show any symptoms, treatment, or facts relating to the Veteran's prostate that were not considered in the November 2015 VA examination. Therefore, the November 2015 VA examination is adequate. The Veteran's symptoms do not warrant a rating in excess of 20 percent prior to April 8, 2021. Prior to April 8, 2021, there is no evidence showing increased urinary frequency with voiding intervals of less than one hour during the daytime or awakening to void for or more times per night. Prior to April 8, 2021, there is no evidence showing constant urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinent requiring the use of appliances or wearing of absorbent materials which must be changed two to four times per day. Additionally, there is no evidence of obstructed voiding or urinary tract infections prior to April 8, 2021. The first evidence of any increase in symptoms is in the April 2021 prostate examinations, which shows daytime voiding interval of less than 1 hour. Therefore, the requirements for a rating in excess of 20 percent prior to April 8, 2021 are not met. Based on the above, the Board concludes that the evidence persuasively favors against an initial increased rating in excess of 20 percent disabling for residuals of prostate cancer prior to April 8, 2021. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch, No. 2020-2067, 2021. Therefore, the claim for a higher rating prior to April 8, 2021 is denied. 2. Entitlement to an initial compensable rating for erectile dysfunction The Veteran contends he is entitled to an initial compensable rating for erectile dysfunction. The Board again notes that the criteria for rating genitourinary system disabilities have changed once during the period covered by this appeal, effective September 30, 2021. Specifically, Diagnostic Code 7522 of 38 C.F.R. § 4.115b for erectile dysfunction was updated on September 30, 2021. See 86 Fed. Reg. 54086 (Sept. 30, 2021). Prior to the update, Diagnostic Code 7522 required deformity with loss of erectile power for a 20 percent rating. 38 C.F.R. § 4.115b (Sept. 1994). Revised Diagnostic Code 7522 identified erectile dysfunction with or without deformity only allowing a non-compensable (zero percent) rating. See 38 C.F.R. § 4.115b, Note to Diagnostic Code 7522 (Sept. 30, 2021). In this case, the probative evidence of record does not establish that the Veteran has any deformity of the penis at any time during the period on appeal. The Veteran was afforded an April 2021 VA Examination of his male reproductive organs. In this examination, the examiner found the Veteran's penis as normal. As such, no deformity, internal or external, is identified. Therefore, a compensable rating is not available under the pre-September 2021 version of Diagnostic Code 7522. Similarly, the current rating only allows for a non-compensable rating. As such, an initial compensable rating is not available under Diagnostic Code 7522. The Board notes that the Veteran is in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) for the loss of use of a creative organ. This regulation has not been changed during the period on appeal. While the Veteran is not entitled to a compensable rating under the Diagnostic Codes, SMC k is the appropriate compensation beyond any compensable rating under the diagnostic codes where there is loss of use of a creative organ. The probative evidence establishes that the Veteran's ED was a result of his TURP treatment for his now service-connected prostate in 2008. See November 2021 VA Opinion. It is also established that ED qualifies as loss of use of a creative organ and therefore rated as a residual of the Veteran's prostate cancer. As such, the Veteran is appropriately awarded SMC k effective February 5, 2013, the filing of his claim. Based on the above, the Board concludes that the evidence persuasively favors against a grant of an initial compensable rating for erectile dysfunction. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the Veteran's claim must be denied. 3. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus The Veteran contends his diabetes mellitus should be rated at higher than 20 percent disabling. The Board notes that 38 C.F.R. § 4.119 was updated on November 2, 2017. However, there was no change to Diagnostic Code 7913 for diabetes mellitus. As such, the same criteria for applies for the entire period on appeal. The Veteran's diabetes mellitus is rated under Diagnostic Code 7913. A 40 percent rating is warranted where treatment requires one or daily injections of insulin is required, restricted diet, and regulation of activities. Similarly, ratings of 60 and 100 percent also required all elements of a 40 percent rating, with additional elements. As defined in Diagnostic Code 7913, "regulation of activities" means "avoidance of strenuous occupational and recreational activities." The November 2015 through June 2018 VA records associated with the Veteran's file have several mentions of diabetes, including notes that medications will be held off as the Veteran lost some weight, that his blood sugar may remain under control, and that he should continue diabetic diet exercise. See May 2016 Treatment Note. As such, the Board will give the Veteran the benefit of the doubt and not rely on the November 2015 diabetes mellitus VA examination. The Board reviewed the evidence of record and finds that the Veteran's diabetes mellitus requires one or more daily injections of insulin and is managed by a restricted diet. See April 2021 VA Examination. However, there is no evidence of regulation of the Veteran's activities as part of regulation of activities as part of medical management of this diabetes. See id. (Noting the Veteran does not require regulation of his activities as part of medical management of diabetes mellitus). While the Veteran's disability may limit his ability to conduct various activities, it is not considered regulation of activities. There is no other evidence indicating that the Veteran has ever required avoidance of strenuous occupational and recreational activities, and in fact the evidence shows that he has been advised to engage in exercise to help with his diabetes. Therefore, the element of regulation of activities as required for a rating in excess of 20 percent disabling for diabetes mellitus is not met. Based on the above, the Board concludes that the evidence persuasively favors against a rating in excess of 20 percent disabling for diabetes mellitus. The evidence is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch, No. 2020-2067, 2021. Therefore, the claim is denied. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.