93 Decision Citation: BVA 93-05813 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-22 370 ) DATE ) ) ) THE ISSUE Whether the rating decision of April 15, 1983, by the agency of original jurisdiction (AOJ), denying a rating in excess of 10 percent for prostatitis, was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Guido, Jr., Counsel INTRODUCTION The appellant-veteran served in the active air service from November 1963 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1988 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The veteran's February 1989 statement was accepted as the notice of disagreement which was filed in March 1989. The statement of the case was issued in April 1989. The April 1989 statement of the veteran's former representative is construed as the substantive appeal. The appeal was docketed at the Board in August 1989. In April 1990, the Board deferred action on this issue pending completion of a remand on another issue which had also been certified on appeal and which since has been resolved in the veteran's favor. The case was returned to the Board in November 1992. The veteran is now represented by Disabled American Veterans. In an August 1992 statement, the veteran requested reconsideration of an April 1990 decision by the Board, denying a rating in excess of 40 percent for prostatitis and neurogenic bladder with sensory loss of the ilioinguinal nerve and the genital branch of the gluteal-femoral nerve. In February 1993, the Chairman of the Board denied the veteran's motion for reconsideration and sent notification of the determination and Notice of Appellate Rights Following Denial of the Motion for Reconsideration to the veteran. While the veteran has argued that the April 15, 1983, rating decision was clearly and unmistakably erroneous, he relies on evidence that was received after the April 1983 rating decision to support his claim. The RO did consider additional evidence received after the April 1983 rating decision, including that referred to by the veteran, in rating decisions entered on July 20 and 26, 1983. In order to adequately address the veteran's argument and in order to consider all the relevant evidence, the Board construes the veteran's claim of clear and unmistakable error to incorporate the last rating decision on July 26, 1983, in the adjudicative process predicated on the April 15, 1983, rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the April 15, 1983, rating decision by the AOJ, denying a rating in excess of 10 percent for prostatitis, involved clear and unmistakable factual error because the AOJ failed to consider pertinent findings, including urinary bladder dysfunction and impotency secondary to service-connected prostatitis, as shown in a March 1982 VA record, in a July 1982 statement by a private physician and in a March 1983 VA examination (evidence of record at the time of the April 1983 rating decision) and, in a November 1982 statement of a private physician and an urodynamic study by Duke University (evidence received after the April 1983 rating decision). It is argued that the rating decision was legally erroneous because it was not signed by a medical specialist of the rating board and the case was not transferred to another RO due to potential conflict of interest in accordance with the VA Adjudication Procedure Manual, M21-1, para. 21.06. DECISION OF THE BOARD In accordance with 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the reasons and bases herein set forth, it is the decision of the Board that the April 15, 1983, rating decision by the AOJ did not involve clear and unmistakable error. FINDINGS OF FACT 1. In the April 15, 1983, rating decision, the AOJ denied a rating in excess of 10 percent for prostatitis on the grounds that the condition was no more than moderately disabling; after notification of the determination was mailed to the veteran that same month, he filed a notice of disagreement and a statement of the case was sent; rating decisions of July 20 and 26, 1983, confirmed and continued the denial of an increased rating for prostatitis and the veteran was notified of these determinations in a supplemental statement of the case; the appeal was not perfected as a substantive appeal was not filed within the remainder of the 1-year period from the date of the mailing of the notification of the determination being appealed; i.e., April 15, 1983. 2. The rating decision of July 26, 1983, incorporating all the relevant law, regulations and evidence beginning with the April 15, 1983, rating decision, was in accordance with the statutory and regulatory provisions pertaining to an increased rating for prostatitis and the correct facts as they were known at the time were before the adjudicator. CONCLUSION OF LAW The rating decision of April 15, 1983, became final and the rating decision of July 26, 1983, incorporating all the relevant evidence, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a), 3.160(d) (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is satisfied that the facts pertinent to the claim are on the record and no additional development is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107(a) (West 1991). Background The service medical records show that the veteran's genitourinary problems began in December 1966 with pyuria and dysuria. After continued symptoms with improvement on therapy; minimal, asymptomatic chronic prostatitis was diagnosed in October 1967. In an April 1968 rating decision, the AOJ awarded service connection for prostatitis and assigned a noncompensable rating therefor. In a December 1969 rating decision, based on his complaint of continued genitourinary difficulty and after prescription of medication during private hospitalization in September 1969, the disability rating was increased to 10 percent. The 10 percent rating was confirmed on subsequent rating decisions in June 1970 and May 1973. On April 1973 VA examination, a history of prostatitis with no present infection was diagnosed. A July 1982 report of examination by W.G. Montgomery, M.D., private physician, received in October 1982, was accepted as an informal claim for an increased rating for prostatitis and an official examination was scheduled in March 1983. See C.F.R. 3.157(a)-(b)(2) (1992). Accompanying the report was a March 1982 statement from a VA physician concerning antibiotic medications for treatment of acute prostatitis confirmed by urinalysis. The July 1982 report by Dr. Montgomery shows that the veteran complained of a prostate infection. History included recurring urinary frequency, nocturia, a feeling of lower abdominal, pelvic and suprapubic fullness and discomfort, urinary hesitancy with interrupted stream and straining to void and painful ejaculation. The pertinent findings were a slightly enlarged, boggy and tender prostate. Microscopic examination of urine was negative. Prostatic secretions showed only occasional white and red blood cells. The impressions were detrusor dysfunction, history of prostatitis and to rule out neurogenic bladder and or myogenic bladder dysfunction. In a November 1982 letter to the Adjudication Officer of the Newark New Jersey, VARO, the veteran's then representative wrote that the veteran was a National Service Officer of a veterans' organization in the Winston-Salem VARO and asked that his records be transferred there. On VA examination in March 1983, the veteran's complaints were pain over the bladder and groin, pain in the area of the right kidney, urinary difficulty with partial obstruction of stream, a sensation of incomplete emptying of the bladder, periodic discomfort, loss of sexual vigor and urinary frequency. It was noted that he was working and on medication. The examiner reported that the veteran had a long history of chronic prostatitis and that he had been adequately and completely evaluated and treated by Dr. Montgomery. Examination revealed a slightly enlarged prostate. Prostatic secretions revealed many white blood cells. The impression was chronic prostatitis and poor bladder emptying. In a rating decision on April 15, 1983, the Winston-Salem VARO denied the veteran's claim for an increased rating in excess of 10 percent for prostatitis, considering complaints of dysuria and pain over the bladder and lower back and symptoms of incomplete bladder emptying, urinary frequency, enlarged prostate and increased white blood cells. At the time the veteran's only other service-connected disabilities were anxiety disorder and duodenal ulcer disease. In an April 1983 letter, VA notified the veteran of the denial of his claim based on all the evidence of record, including Dr. Montgomery's statement and the March 1983 VA report of examination. He was also notified that he could appeal the decision to the Board of Veterans' Appeals within one year from the date of the letter. The veteran's notice of disagreement was filed in April 1983. In May 1983, the Winston-Salem VARO transferred the veteran's file to the Roanoke VARO because of a potential conflict of interest, citing that the veteran as a National Service Officer, who was in daily contact with members of the rating board. While the file was at Roanoke VARO, the veteran's then representative noted that the April 15, 1983, rating decision had not been signed by a medical specialist. In July 1983, the file was returned to the Winston-Salem VARO and apparently the medical specialist signed the rating decision as three signatures appear on the rating decision, but there is no indication when the medical specialist actually signed it. In July 1983, the Winston-Salem VARO furnished the veteran a statement of the case, citing 38 U.S.C. § 355 (recodified as 38 U.S.C.A. § 1155 (West 1991)), and 38 C.F.R. Part 4, § 4.115a, Diagnostic Code 7527, pertaining to prostatitis, and the pertinent rating criteria. After the statement of the case was furnished, the veteran submitted records dated in August and November 1982 of Dr. Montgomery and a January 1983 urologic note of G.D. Webster, M.D., of Duke University Medical Center. These records show that in August 1982 microscopic examination of urine was negative. Cystometrogram revealed a large capacity bladder with stable detrusor and a cystourethroscopic study revealed no prostatic abnormality. In November 1982, microscopic examination of urine was negative. In January 1982, the veteran was referred to Dr. Webster by Dr. Montgomery for urodynamic evaluation to exclude an underlying neurogenic problem. A urodynamic study revealed a large capacity bladder which was sensorily intact. Dr. Webster explained that the urodynamic findings were likely of prostatitis origin and that the main problem was a large capacity bladder. The impression was history of chronic prostatitis/prostatalgia and large capacity bladder with efficient emptying albeit with intermittent and slow stream. In a March 1983 statement, received in July 1983, Dr. Montgomery stated that the veteran had chronic prostatitis with associated bladder dysfunction. These records and statement were considered in confirmed rating decisions on July 20 and 26, 1983, by the Winston-Salem VARO and the veteran was notified of the determinations in a supplemental statement of the case furnished in August 1983. Also in August 1983 the veteran was reminded that he should submit his substantive appeal and that he could request additional time if needed. In December 1983, the veteran's file was transferred to the Roanoke VARO under M21-1, para. 21.06. The next correspondence from the veteran pertaining to prostatitis was received in February 1985 requesting an increased rating. In a December 1987 rating decision, the RO granted service connection for neurogenic bladder with sensory loss of the ilioinguinal nerve and the genital branch of the gluteal-femoral nerve. In a June 1992 rating decision, the RO granted service connection for impotency. Analysis The April 15, 1983, rating decision by the Winston-Salem VARO became final because the veteran did not perfect his appeal by filing a substantive appeal within the one-year period from the date of the notice of the determination being appealed. 38 U.S.C.A. § 7105(a); 38 C.F.R. §§ 3.104(a), 3.160(d). A final rating decision by the AOJ is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 C.F.R. 3.105(a). In Russell v. Principi, 3 Vet.App. 310, 313-14 (1992), the United States Court of Veterans Appeals defined a valid claim of "clear and unmistakable error" under 38 C.F.R. § 3.105(a) as one where there is error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. The Court also set out that a "clear and unmistakable error" is the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made; and, that an error that would not have changed the outcome is harmless as such error does not give rise to the need for revising the previous decision. The veteran argues that the AOJ failed to consider pertinent findings, including urinary bladder dysfunction and impotency secondary to service-connected prostatitis, as shown in a March 1982 VA record, in July and November 1982 statements by a private physician, in an urodynamic study conducted at of Duke University, and in a March 1983 VA examination. The record shows that the above documents were before the adjudicator, but neither urinary bladder dysfunction nor impotency was an adjudicated service-connected disability at the time. While a neurogenic bladder had been suspected, urologic evaluation, including urodynamic study, revealed a large capacity bladder which was sensorily intact and a neurogenic bladder was not diagnosed. While retrograde ejaculation was noted, impotency was not diagnosed at the time. While both conditions were subsequently service-connected in 1987 and 1992, this is after the April 1983 adjudicative process had become final. In other words, any symptoms relating to urinary bladder or impotency were not for consideration in evaluating the service-connected prostatitis in 1983. As for prostatitis, under Diagnostic Code 7527, prostate gland infections are rated as for chronic cystitis. Chronic cystitis is rated under Diagnostic Coder 7512. A 10 percent rating is warranted for moderate chronic cystitis with pyuria and diurnal and nocturnal frequency. A 20 percent evaluation requires moderately severe cystitis with diurnal and nocturnal frequency with pain and tenesmus. Although the veteran had nocturia, pyuria or pus in the urine, a sign of inflammation, was not demonstrated in the urine or prostatic secretions after March 1982. In other words, except for acute prostatitis in March 1982, prostatitis or inflammation of the prostate gland was not clinically significant as it was demonstrated on laboratory tests and it was noted by history only by Drs. Montgomery and Webster. In short, the correct facts were before the adjudicator and the veteran's argument is no more than a disagreement with how the facts were weighed or evaluated which is insufficient to establish a valid claim of clear and unmistakable factual error. See Russell at 313. The veteran also argues that the rating decision was legally erroneous because it was not signed by a medical specialist of the rating board and the case was not transferred to another RO due to potential conflict of interest in accordance with the VA Adjudication Procedure Manual, M21-1, para. 21.06. The veteran has not cited any statutory or regulatory authority establishing a requirement that a rating decision must be signed by a medical specialist and the Board has not found any. There is reference to rating boards in 38 C.F.R. Part 3, Adjudication, and Part 4, Schedule for Rating Disabilities, but there is nothing that requires a specific number of signatures on a rating decision or specifics who should sign the rating decision. In 1983, there was a provision in the VA Adjudication Procedure Manual, M21-1, para. 45.05 (effective December 17, 1979) (currently as revised in M21-1, Part VI, para. 2.05), pertaining to signatories to rating decisions which provided that: "As a general rule, rating decisions will be signed by a medical rating specialist, legal rating specialist, and an occupational specialist...." It also provided that, in the absence of a member, the completed rating should be signed by another rating specialist. In the Board's view, there is no violation of the cited manual provision, because the error or oversight, if any, was corrected when the third member of the rating board signed the April 15, 1983, confirmed rating decision. As to the conflict-of-interest argument, there was a provision in the VA Adjudication Procedure Manual, M21-1, para. 21.06, NOTE (effective April 13, 1983 ) (currently as revised in M21-1, Part III, par. 2.07, NOTE), pertaining to potential conflict of interest in a nonemployee case. In April 1983, the provision gave the adjudication officer the discretion to determine that a potential conflict of interest existed and permission to transfer the claims folder to a designated RO. In this case, the claims folder remained at the Winston-Salem VARO, where the veteran worked as a nonemployee of the VA, until December 1983, still within the appeal period, when it was transferred to the Roanoke VARO under M21-1, para. 21.06, NOTE. Earlier the claims folder had been transferred to Roanoke VARO in May 1983 and it was returned to Winston-Salem VARO in July 1983. In the Board's view there was compliance with the pertinent Manual provision as the transfer of the claims folder occurred during the adjudicative process. There was no provision as to when the transfer had to take place. It was left to the discretion of the adjudication officer to make the determination, inferentially, sometime within the adjudicative process. As the veteran's claims folder was transferred during the pendency of the claim, which had not become a finally adjudicated claim, he still had the opportunity to exercise his procedural and appellate rights, which he did not do. The Board does not reach the question of whether the provision itself is binding as equivalent to a VA regulation. For above reasons and bases, a valid claim of clear and unmistakable legal error has not been established. ORDER The April 15, 1983, rating decision, by the agency of original jurisdiction (AOJ), denying a rating in excess of 10 percent for prostatitis, was not clearly and unmistakably erroneous and the appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. E. DAY (MEMBER TEMPORARILY ABSENT) SAMUEL W. WARNER (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.