Citation Nr: A25035225 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230208-322516 DATE: April 16, 2025 ORDER Entitlement to an earlier effective date of March 30, 2017, but no earlier, for the award of a 40 percent rating for prostatitis, is granted. REMANDED Entitlement to an effective date earlier than May 25, 2016, for the grant of service connection for prostatitis, based on an allegation of clear and unmistakable error (CUE) in a February 1994 rating decision, is remanded. FINDING OF FACT From March 30, 2017, it is factually ascertainable that the Veteran's prostatitis manifested with awakening to void five or more times per night. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of March 30, 2017, and no earlier, for the award of a 40 percent rating for prostatitis have been met. 38 U.S.C. § 5110; 7105; 38 C.F.R. §§ 3.400, 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) from a January 2023 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board in March 2020 and September 2022. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO has not substantially complied with the previously remand directives. While the issues in this appeal were previously remanded together, the Board has decided to separate the issues and address the issue over which the Board has jurisdiction, to avoid further delay in adjudication of all the Veteran's claims in this appeal. Unfortunately, because the Veteran asserts CUE as the basis for his claim for an effective date earlier than May 25, 2016, for the grant of service connection for prostatitis, the Board does not have jurisdiction to adjudicate that claim in the first instance. As a result, that issue must again be remanded to allow the RO to adjudicate it in the first instance. Neither the Veteran nor the Veteran's representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue decided in this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue decided in this appeal. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to an earlier effective date of March 30, 2017, and no earlier, for the award of a 40 percent rating for prostatitis is granted. The Veteran was granted service connection for prostatitis in a March 2019 Board decision. In implementing the March 2019 Board decision, the RO assigned a noncompensable (zero) rating with an effective date of May 25, 2016. The Veteran appealed the decision asserting entitlement to an earlier effective date for the grant of service connection for prostatitis and entitlement to an increased rating. In an April 2019 Appellate Brief, the Veteran's representative asserted that the Veteran was entitled to a 40 percent rating for his service-connected prostatitis based on a VA examination report added to the Veteran's claims file in April 2017. In a January 2021 rating decision, the Veteran's disability rating for his service-connected prostatitis was increased from noncompensable to 40 percent effective June 17, 2020. In January 2021, the Veteran appealed the January 2021 rating decision seeking an earlier effective date for the grant to the 40 percent rating for his service-connected prostatitis. As noted above, this appeal has been previously before the Board and remanded. The Veteran has continuously pursued his claim of entitlement to an earlier effective date for the grant to the 40 percent rating for his service-connected prostatitis. Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application for said benefits.?38 U.S.C. § 5110(a);?38 C.F.R. § 3.400. Because the Veteran has continuously pursued his claim of entitlement to an earlier effective date for the grant to the 40 percent rating for his service-connected prostatitis from the March 2019 rating decision in which service connection for prostatitis was granted, the applicable rating period is from May 25, 2016, the effective date for the award of service connection for prostatitis. The Veteran is in receipt a 40 percent rating for his prostatitis from June 17, 2020. Therefore, the question before the Board is whether the Veteran's his service-connected prostatitis manifested with symptoms warranting a disability rating of 40 percent prior to June 17, 2020. The Veteran's prostatitis is rated under 38 C.F.R. §4.115b, Diagnostic Code 7527. Under DC 7527, prostate gland injuries, infections, hypertrophy, postoperative residuals, and bladder outlet obstruction are evaluated under either voiding dysfunction, or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, DC 7527. Under 38 C.F.R. § 4.115a, any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. With respect to urine leakage (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. 38 C.F.R. § 4.115a. With respect to urinary frequency, 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. With respect to obstructed voiding, 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. The Board has reviewed the relevant evidence in the Veteran's claims file during the period on appeal. During a VA examination conduction on March 30, 2017, the examiner noted that the Veteran had voiding dysfunction that caused increased urinary frequency. There was daytime voiding interval less than one hour and nighttime awakening to void five or more times. See April 2017 C&P Exam. During a VA examination conduction on June 17, 2020, the examiner noted that the Veteran had voiding dysfunction that caused increased urinary frequency. There was daytime voiding interval between one and two hours and nighttime awakening to void five or more times. See July 2020 C&P Exam. The Board finds that it was factually ascertainable at the time of the March 30, 2017 VA examination that the Veteran's service-connected prostatitis manifested with symptoms that warranted a disability rating of 40 percent. Specifically, the Veteran experienced awakening to void five or more times per night. Based on the foregoing, the criteria for entitlement to earlier effective date of March 30, 2017, and no earlier, for the award of a 40 percent rating have been met. To the extent that the Veteran seeks entitlement to an effective date prior to March 30, 2017, the Board concludes that the evidence for and against the appeal is not in approximate balance, but rather weighs against the appeal. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and, to that extent, the appeal must be denied. 38 U.S.C. § 5107 (b); see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND Entitlement to an effective date earlier than May 25, 2016, for the grant of service connection for prostatitis based on CUE in a February 1994 rating decision, is remanded. The Veteran initially sought entitlement to service connection for prostatitis in 1994. In a February 1994 rating decision, the Veteran was denied service connection for prostatitis. He did not appeal the decision and it became final. In May 2016, the Veteran filed a claim for entitlement to service connection for prostate cancer. In a March 2019 Board decision, the Veteran was granted service connection for prostatitis. The RO assigned a noncompensable rating with an effective date of May 25, 2016, the date of receipt of the May 2016 claim. In April 2019, the Veteran appealed the March 2019 rating decision that implemented the March 2019 Board decision. His representative argued that the February 1994 rating decision contained CUE, and as a result of CUE in the February 1994 rating decision, the effective dated for service connection should be October 13, 1993. The representative also argued that the Veteran was entitlement to a 40 percent rating for his service-connected prostatitis from the date of an April 2017 VA examination. The Board, in a March 2020 decision, remanded "the claim of entitlement to an initial (compensable) rating prostatitis, to include an earlier effective date for the grant of service connection based on clear and unmistakable error (CUE)." A new VA examination was requested. In June 2020, the Veteran was provided another VA examination for his prostatitis. Based on the June 2020 VA examination, in a January 2021 rating decision, the Veteran's disability rating for his service-connected prostatitis was increased from noncompensable (zero percent) to 40 percent effective June 17, 2020. The allegation of CUE in the February 1994 rating decision was not addressed. The Veteran's claim for entitlement to an earlier effective for the grant of service connection for prostatitis was denied. In January 2021, the Veteran appealed the January 2021 rating decision. In an August 2021 decision, the Board remanded (1) entitlement to an effective date earlier than May 25, 2016, for the grant of service connection for prostatitis, including on the basis of CUE in a February 1994 rating decision; and (2) entitlement to an effective dated earlier than June 17, 2020, for the award of an increased 40 percent rating for prostatitis. In an August 2021 rating decision, the RO denied entitlement to an earlier effective date for the grant of service connection for prostatitis and entitlement to an earlier effective date for the grant of the 40 percent rating for the Veteran's service-connected prostatitis. The assertion that there was CUE in the February 1994 rating decision was not addressed. In July 2022, the Veteran appealed the August 2021 rating decision. In a September 2022 decision, the Board again remanded (1) entitlement to an effective date earlier than May 25, 2016, for the grant of service connection for prostatitis, including on the basis of CUE in a February 1994 rating decision; and (2) entitlement to an effective dated earlier than June 17, 2020, for the award of an increased 40 percent rating for prostatitis. In the January 2023 rating decision on appeal, the RO continued its denial of the Veteran's claims for earlier effective dates for service connection for prostatitis and the 40 percent rating of his prostatitis. Again, the RO did not adjudicate the issue of whether there was CUE in the February 1994 rating decision which denied service connection for prostatitis. As noted above, the Board does not have jurisdiction over CUE claims that have not been adjudicated in the first instance by the RO. The Board regrets the additional delay of another remand. However, the RO's failure to comply with the previous remand directives is a pre-decisional duty to assist error that requires that the issue be remanded to allow the RO to adjudicate the claim in the first instance. The matters are REMANDED for the following action: (Continued on the next page) ? Adjudicate whether there was CUE in the February 1994 rating decision that denied entitlement to service connection for prostatitis. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. R. G., 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.