Citation Nr: 23055352 Decision Date: 10/10/23 Archive Date: 10/10/23 DOCKET NO. 18-12 191 DATE: October 10, 2023 ORDER An initial increased rating of 10 percent for a surgical scar, status-post prostatectomy, but no higher, is granted. An initial increased rating in excess of 40 percent for radical prostatectomy residuals is denied. An initial compensable rating for erectile dysfunction is denied. REMANDED Service connection for a low back disability is remanded. Service connection for a neck disability is remanded. VETERAN'S CONTENTIONS The Veteran contends that he is entitled to compensable ratings for his surgical scar and erectile dysfunction, and a rating in excess of 40 percent for his prostate cancer residuals. He believes he is entitled to a compensable rating for the scar because it is painful, and he cannot wear fitted clothes, including a belt, or use a seatbelt. See March 2018 Correspondence. Regarding his erectile dysfunction, he believes that he is entitled to a compensable rating because his penis has decreased in length and circumference since his prostatectomy. Id. and February 2018 Notice of Disagreement (NOD). Further, regarding his prostatectomy residuals, he reported that the 40 percent rating does not represent the severity of his residuals. FINDINGS OF FACT 1. The Veteran has a painful linear scar resulting from the radical prostatectomy. See January 2023 VA Medical Opinion and March 2018 Correspondence. The scar does not cover an area of at least 6 square inches but less than 12 square inches. Id. It also does not cover at least an area of 144 square inches or greater. Id. 2. The Veteran's radical prostatectomy residuals are manifested by urinary incontinence or leakage, the use of absorbent materials requiring changing between two to four times per day, daytime voiding interval between 1 and 2 hours, and awakening to void five or more times per night. See January 2023 VA Medical Opinion. 3. The Veteran does not have penile deformity. See January 2023 VA Medical Opinion. CONCLUSIONS OF LAW 1. The criteria?for?an?initial increased rating of 10 percent, but no higher, for a painful surgical scar are met.??38?U.S.C. §?1155, 5107;?38?C.F.R. §§?4.118, DC 7805. 2. The criteria for an initial increased rating in excess of 40 percent for radical prostatectomy residuals are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1- 4.3, 4.7, 4.14, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to November 1970. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a December 2017 and January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his March 2018 VA Form 9. However, in an August 2023 statement, the hearing request was withdrawn by the Veteran. In November 2022, the Board remanded this appeal for additional development, to include VA examinations. Following the November 2022 remand, the RO granted service connection for the Veteran's hearing loss, tinnitus, and hypertension disabilities. As the Veteran has not yet appealed the ratings initially assigned or the effective date of service connection, the Board finds that these grants of service connection constitute a full award of the benefits sought on appeal with respect to those issues and the Board will not further address them. See Grantham v. Brown, 114 F.3d at 1158-59 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, 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. As an initial matter, the Board finds that the RO substantially complied with the Board's remand directives regarding the requested medical opinions for the Veteran's increased rating claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. An initial increased rating of 10 percent for surgical scar, status-post prostatectomy, but no higher, is granted. The Veteran contends that he is entitled to a compensable rating for his surgical scar disability. See March 2018 Correspondence and VA Form 9. The Veteran's surgical scar associated with his radical prostatectomy is rated noncompensable effective August 11, 2017 under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin was amended, effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). For the appeal period prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and rate based on whichever is most favorable to the Veteran. As the Veteran's scar is not on the face, head or neck, Diagnostic Codes 7800 does not apply in this case, and will not be discussed. 38 C.F.R. § 4.118, Diagnostic Codes 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for a scar that is not of the head, face, or neck, that is deep and nonlinear (former code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 square centimeters). Higher ratings are available if larger areas are affected. Under the former code, a "deep scar" is defined as one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a 10 percent rating is warranted for a scar not of the head, face, or neck, that is superficial and nonlinear (former code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 square centimeters) or more. Under the former code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. Under both the former and amended criteria for Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings of 20 and 30 percent are warranted if there are three or four, or five or more, unstable or painful scars, respectively. If one or more scars are both unstable and painful, a 10 percent rating is added to the rating that is based on the total number of unstable or painful scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. The Veteran underwent one VA scars examination in January 2023. The January 2023 VA examiner noted that the Veteran had one anterior truck scar associated with his prostatectomy surgery. However, this examiner also noted that the scar was not painful, unstable, or affecting an area equal to or greater than 39 square centimeters (6 square inches), or covering an area of at least 144 square inches (929 square centimeters) or more. See January 2023 VA Medical Opinion. However, the Veteran has consistently reported that his scar is painful. Specifically, he reported that he was unable to wear belts, use seatbelts, or wear jeans. See March 2018 Correspondence. As a layperson, the Veteran is competent to report on all things about which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the foregoing, the Board finds that the Veteran's scar is consistent with a 10 percent rating for one to two painful scars under Diagnostic Code 7805. However, the Board also finds that he is not entitled to a higher rating under DC 7805, as the evidence does not show that he has more than one painful scar from his prostatectomy. The Board has considered whether any alternative diagnostic code would provide for a higher rating but found none that would do so. Specifically, there is nothing to support any additional disabling effects caused by the Veteran's scarring; the scar is not documented as affecting an area equal to or greater than 39 square centimeters (6 square inches). Further, none of the alternative skin diagnostic codes either in the pre-amended or post-amended form would provide for a higher rating where, as here, the scar does not involve the head, face, or neck and is not associated with underlying soft tissue damage. Accordingly, the Board finds that an increased initial rating of 10 percent for surgical scar, status-post prostatectomy, but no higher, is warranted. 2. An initial increased rating in excess of 40 percent for radical prostatectomy residuals is denied. By way of history, the Veteran's prostatectomy residuals are rated as 40 percent disabling effective August 11, 2017 pursuant to Diagnostic Code 7528. Diagnostic Code 7528 pertains to malignant neoplasms of the genitourinary system and provides that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. 38 C.F.R. § 4.115b. If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. As there is no evidence of renal dysfunction, the Veteran's prostate cancer residuals are currently rated based on voiding dysfunction. Specifically, a 40 percent rating has been assigned for urinary leakage or incontinence requiring the wearing of absorbent materials that must be changed must be changed 2 to 4 times per day. 38 C.F.R. § 4.115a. An increased 60 percent rating requires the use of an appliance or absorbent materials that must be changed must be changed more than four times per day. Here, the Veteran was afforded two VA examinations to determine the severity of his prostatectomy residuals, in January 2018 and January 2023. Each examiner noted that he changed his absorbent materials two to four times per day. However, neither examiner found that his voiding dysfunction required the use of an appliance. Although the Veteran reports that he is entitled to a rating in excess of 40 percent for these residuals, there is no other relevant evidence demonstrating that he must change absorbent materials more than four times per day or that an appliance is required. To the extent that the record shows urinary frequency, a rating in excess of 40 percent would not be warranted, as a maximum 40 percent rating is assignable for urinary frequency. Similarly, though the record does support post-prostatectomy obstructive voiding, rating voiding dysfunction based on that manifestation would provide for a maximum 30 percent rating. 38 C.F.R. § 4.115a. Thus, absent evidence of renal dysfunction, there is no basis upon which a rating greater than 40 percent can be assigned. In sum, the Board finds that an initial rating in excess of 40 percent for the prostatectomy residuals is not warranted. 3. An initial compensable rating for erectile dysfunction is denied. The Board finds that a separate compensable rating is not warranted for complications of erectile dysfunction. In this regard, while the Veteran has been shown to have loss of erectile power, he has not been found to have a deformity of the penis or functional impairment. See January 2023 VA Medical Opinion. 38 C.F.R. § 4.115b, DC 7522. Although the Veteran stated that his penis has decreased in length and circumference, at the January 2023 VA examination, he opted out of a physical inspection of his penis. He instead reported to the examiner that he had a normal anatomy with no penile deformity or abnormality. See January 2023 VA Medical Opinion. Additionally, although the Veteran argued that his erectile dysfunction was more closely approximated to a penile deformity, he failed to explain how or allow a thorough inspection at the VA examination. Of final note, the Board notes that the Veteran is in receipt of special monthly compensation for loss of use of creative organ for the entire period on appeal and without evidence of penile deformity, he is not entitled to a compensable rating for his erectile dysfunction. As such, based on the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for his erectile dysfunction. REASONS FOR REMAND Service connection for the low back and neck disabilities. Here, the Board finds that additional remand is required. Specifically, the January 2023 VA examiner opined that the Veteran's back and neck disabilities were less likely than not caused by or a result of an event in service. See January 2023 VA Medical Opinion. In support of this finding, the examiner acknowledged that the Veteran's entrance report of medical history noted a back brace, but no pathology was noted. Additionally, the examiner noted that at separation no back or neck issues were identified. Further, the examiner noted that there were no civilian records that showed chronic back pain. However, the?Board finds that the January 2023 VA medical opinion is inadequate for adjudicative purposes.?See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 304 (2008). Specifically, the examiner relied on the absence of service treatment records as the basis for the negative nexus opinion. The Board points out that the examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." Additionally, it is unclear whether the examiner considered the Veteran's statement that he injured his neck and back while carrying a plank across the river. See March 2018 Correspondence. Further, it is unclear whether the examiner considered his statements that he has experienced neck and back pain along with decreased range of motion since service. Id. As the opinion obtained on remand is inadequate, the Board finds that a VA addendum opinion is warranted.?See?Barr v. Nicholson, 21?Vet. App.?303, 311 (2007).? In ordering?a?remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.?Rather, the Board is merely requesting that the?examiner?on remand consider the Veteran's own descriptions of the history of his low back and neck disabilities.?See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any and all health care providers who have provided treatment for his back and neck disabilities. 2. After completing the development outlined in Items 1 and 2, the RO should send the claims file to the previous spinal examiner. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Please state whether it is at least as likely as not (approximate 50 percent probability or nearly 50 percent probability) that the Veteran's low back disability (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. In providing a response to paragraph (a), please accept as true the Veteran's statements that his back disability is related to the rigors of his duties in service and that he has suffered back pain since service. See March 2018 Correspondence. (b.) Please state whether it is at least as likely as not (approximate 50 percent probability or nearly 50 percent probability) that the Veteran's neck disability (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. In providing a response to paragraph (a), please accept as true the Veteran's statements that his back disability is related to the rigors of his duties in service and that he has suffered neck pain since service. See March 2018 Correspondence. Please keep in mind that the phrase "at least as likely as not" means that "the favorable and unfavorable evidence is in approximate balance or is nearly equal. For the purpose of providing the opinion requested, state whether a nexus between the Veteran's back and neck disabilities and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the examiner should consider medical and lay evidence dated both since the filing of the claim. The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.