BVA9413492 DOCKET NO. 88-34 871 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased (compensable) rating prior to February 17, 1994, for benign prostatic hypertrophy, status post resection. 2. Entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran had active service from February 1942 to January 1953 and from March 1953 to October 1962. The issues on appeal came before the Board of Veterans' Appeals (hereinafter the Board) from adverse rating determinations of the Washington, D.C., Department of Veterans Affairs (VA) Regional Office (hereinafter RO). In a February 1994 letter, copies of the medical literature cited in this decision were furnished to the veteran's representative in accordance with Thurber v. Derwinski, 5 Vet.App. 119 (1993). A response was received in April 1994. The veteran's repre- sentative essentially requested that copies of the additional evidence be furnished to the RO and veteran for review and action. Pursuant to an advisory opinion from the General Counsel of the VA (O.G.C. Advisory Opinion 42-93 (Nov. 2, 1993)), such need not be done. Specifically, the Board has been advised by the General Counsel that the practice of providing copies of medical opinions only to a claimant's representative (where the claimant is represented) is consistent with the general rule of law that notice to the representative is notice to the claimant. Absent an overriding provision of the law, we find that the evidence in question was provided to the representative in this case, and that such provision satisfied the requirement of notice. Since new rating criteria for evaluating genitourinary system disabilities under the VA's Schedule for Rating Disabilities, as codified in 38 C.F.R. Part 4 (1993), became effective February 17, 1994, the issue of entitlement to an increased (compensable) rating subsequent to February 16, 1994, for benign prostatic hypertrophy, status post resection, is referred to the RO for development and initial consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence that, although he has not had any significant urinary symptoms associated with his service- connected benign prostatic hypertrophy following a transurethral resection of the prostate undertaken in December 1985, he nevertheless meets the criteria for the assignment of a minimum 20 percent evaluation under the provisions of 38 C.F.R. Part 4, Diagnostic Code 7526. Moreover, he believes that the clinical evidence of record clearly demonstrates loss of use of a creative organ as a consequence of a transurethral resection of the prostate performed in December 1985 for urinary flow obstruction associated with his service-connected benign prostatic hypertrophy. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and, for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the grant of an increased compensable rating prior to February 17, 1994, for benign prostatic hypertrophy, status post resection; however, the evidence is in favor of the grant of entitlement to special monthly compensation for loss of use of a creative organ. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected benign prostatic hypertrophy, status post transurethral resection of the left prostatic lobe, (less than total prostatectomy) is essentially asymptomatic. 3. The veteran has been rendered infertile due to retrograde ejaculation as a consequence of transurethral resection of the prostate for urinary flow obstruction associated with service- connected benign prostatic hypertrophy. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable evaluation prior to February 17, 1994 for benign prostatic hypertrophy, status post resection have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, and Part 4, Diagnostic Codes 7526, 7527, 7512 (1993). 2. The criteria for special monthly compensation for loss of use of a creative organ have been met. 38 U.S.C.A. §§ 1114(k), 5107(a)(b) (West 1991); 38 C.F.R. § 3.350(1)(i)(a)(b)(c) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant has presented claims which are plausible. We have found that his claims are well-grounded within the meaning of statute and judicial construction. Murphy v. Derwinski, 1 Vet.App 78 (1990); 38 U.S.C.A. § 5107(a) (West 1991). The VA therefore has a duty to assist the veteran in the development of facts pertinent to his claims. Id. A review of the veteran's claims file, consisting of three volumes reflects that available service medical records, as well as numerous post service VA and private clinical data and reports of VA examinations conducted during the appeal period, as well as post-service medical records from Walter Reed Army Hospital and testimony given by the veteran at a hearing before the Board of Veterans' Appeals, Washington, D.C., in July 1988, have been associated with the claims folder. Upon a review of the entire record, the Board concludes that the data currently of record provide a sufficient basis upon which to consider the merits of the veteran's claims. There is no indication that there are additional outstanding records which have not been obtained. Accordingly, no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). I. Increased Rating With respect to the veteran's claim for entitlement to an increased (compensable) evaluation for benign prostatic hypertrophy with resection, he basically contends that, although he has not had any significant urinary symptoms associated with his service-connected benign prostatic hypertrophy following a transurethral resection of the left prostatic lobe in December 1985, he nevertheless meets the criteria for the assignment of a minimum 20 percent evaluation for resection of the prostate as specifically provided under the 38 C.F.R. Part 4, Diagnostic Code 7526. We recognize that disability evaluations are based, as far as practicable, upon the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155 (West 1991). The average impairment is set forth in the VA's Schedule for Rating Disabilities, as codified in 38 C.F.R. Part 4 (1993), which includes diagnostic codes which represent particular disabilities. The pertinent diagnostic codes and provisions will be discussed below as appropriate. We point out that the Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries. The degrees of disability specified are considered adequate to compensate fo considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1993). The Board also notes that when all the evidence is assembled the Secretary is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Moreover, we note that where a statute's language is clear and with no room for construction the plain meaning will be applied unless such application is contrary to the apparent intention of Congress by leading to an absurd result. Gardner v. Derwinski, 1 Vet.App. 584. The "absurd result" exception to the plain meaning rule of statutory construction is narrow and limited to those situations where it is quite impossible that Congress would have intended the result and that the alleged absurdity is so clear as to be obvious to most anyone. Id. at 585. Although courts frequently grant deference to administrative agency's interpretation of a statute, this is true only when the statute is unclear. Id. at 558. Specifically, the veteran's primary argument with respect to his claim of entitlement to an increased (compensable) evaluation for benign prostatic hypertrophy, status post resection of the left prostatic lobe, as illustrated in the testimony from his hearing before the Board of Veterans' Appeals in Washington, D.C. in July 1988, as well as in statements on appeal, is that, although such disorder has been completely asymptomatic and without any urinary discomfort or dysfunction since prostate surgery in December 1985, he nevertheless meets the schedular criteria for the assignment a minimum 20 percent for moderately severe cystitis (Diagnostic Code 7512) based soley upon resection of the prostate gland as provided under 38 C.F.R. Part 4, Diagnostic Codes 7526. At the outset, we note that the prostate is recognized medically as a fibromuscular and glandular organ lying just inferior to the bladder and consists of 5 lobes: anterior, posterior, median, right lateral, and left lateral. Emil A. Tanagho, M.D., Anatomy of the Genitourinary Tract in Smith's General Urology 7 (Emil A. Tanagho and Jack W. McAninch, 12th ed. 1988). Moreover, a resection procedure is recognized as an excision of a portion or all of an organ or other structure. Dorland's Illustrated Medical Dictionary, 1448 (27th ed. 1988). A transurethral prostatic resection is a resection of the prostate by means of a cystoscope passed through the urethra. Id. The provisions of 38 C.F.R. Part 4, Diagnostic Code 7526, rate resection or removal of the prostate gland as cystitis in accordance with severity; however, the minimum rating is 20 percent. Moreover, we also note that 38 C.F.R. Part 4, Diagnostic Code 7527, rates prostate gland injuries, infections, hypertrophy, and postoperative residuals as chronic cystitis under 38 C.F.R. Part 4, Diagnostic Code 7512. For mild symptoms, a noncompensable evaluation is warranted. For moderate symptoms manifested by pyuria, and diurnal and nocturnal frequency, a 10 percent evaluation is warranted. For moderately severe symptoms, a 20 percent evaluation is warranted. 38 C.F.R. Part 4, Diagnostic Code 7512. Furthermore, we recognize that § 7.27, Resection or Removal of the Prostate Gland, (formerly § 50.27) of the VA's Adjudication Procedure Manual, M21-1, explains that the minimum 20 percent evaluation under Diagnostic Code 7526 is for application following a total prostatectomy. Transurethral resection of the prostate gland and conservative open prostatectomy, whether suprapubic, retropubic or perineal type does not automatically establish the minimum 20 percent evaluation. Asymptomatic residuals of a transurethral resection of the prostate gland or conservative open prostatectomy are assigned a noncompensable evaluation. A historical review of the record shows that an initial RO rating determination in April 1977 established service connection for benign prostatic hypertrophy from October 19, 1976, based upon incurrence in service along with the assignment of a non-compensable evaluation which has remained in effect to the present under 38 C.F.R. Part 4, Diagnostic Code 7527-7512, with the exception of the grant of a temporary total 100 percent evaluation under 38 C.F.R. § 4.30 from December 12, 1985, to January 31, 1986, based upon convalescence following a transurethral resection of the prostate, left prostatic lobe, (less than total prostatectomy) for urinary flow obstruction associated with the veteran's service-connected benign prostatic hypertrophy. The bulk of the record dating subsequent to the veteran's transurethral resection of the prostate, left prostatic lobe, in December 1985 to the present, including follow-up postoperative treatment records from Walter Reed Army Hospital, as well as reports of VA genitourinary examinations in October 1986 and June 1989 along with VA outpatient and hospital treatment records dating through 1991, is entirely silent as to any appreciable impairment associated with the veteran's service-connected benign prostatic hypertrophy with resection. Moreover, we note that at a hearing before the Board in Washington, D.C., during July 1988 the veteran, himself, reiterated that, following the pertinent surgical procedure in December 1985 he essentially had been without any noticeable urinary discomfort or dysfunction. As it stands, evaluating the veteran's prostate disability in this case is hampered by the obviously overlapping rating criteria contained within the provisions of 38 C.F.R. Part 4, Diagnostic Code 7526 (rating resection or removal of the prostate gland as cystitis in accordance with severity with a minimu rating of 20 percent) and 38 C.F.R. Part 4, Diagnostic Code 7527 (rating prostate gland injuries, infections, hypertrophy, and postoperative residuals as chronic cystitis under 38 C.F.R. Part 4, Diagnostic Code 7512). Clearly, since both Diagnostic Codes refer to criteria for rating postoperative residuals of the prostate gland, they must be read together in order to properly interpret the overall structure for rating such disability. An examination of the administrative agency's interpretation of 38 C.F.R. Part 4, Diagnostic Code 7526, as found in § 7.27, Resection or Removal of the Prostate Gland (formerly § 50.27) of the VA's Adjudication Procedure Manual, M21-1, explains that the minimum 20 percent evaluation under Diagnostic Code 7526 (moderately severe cystitis) is for application following a total prostatectomy, clearly a radical procedure. Whereas a transurethral resection of the prostate gland and conservative open prostatectomy, whether suprapubic, retropubic or perineal type, does not automatically establish the minimum 20 percent evaluation. Asymptomatic residuals of a transurethral resection of the prostate gland or conservative open prostatectomy are assigned a noncompensable evaluation. In view of the relatively minor transurethral resection of the prostate gland in this case together with the lack of any appreciable impairment as illustrated by the veteran's contentions and absence of any regular treatment by the VA or otherwise over the years following simple prostate surgery in December 1985, to equate such lack of appreciable impairment, anatomically or otherwise, to a total prostatectomy thereby qualifying for the assignment of a minimum 20 percent evaluation in accordance with 38 C.F.R. Part 4, Diagnostic Code 7526, leads to a result so absurd that it is clearly contrary to the intent of the Rating Schedule. Realistically, 38 C.F.R. Part 4, Diagnostic Code 7526, contemplates residuals of radical prostate surgery with other postoperative residuals evaluated under 38 C.F.R. Part 4, Diagnostic Code 7527. Otherwise, the slightest excision of the prostate of whatever proportion would qualify for the assignment of a minimum 20 percent evaluation the same as a total prostatectomy, clearly producing an unintended absurd result. In this case, the veteran's service-connected prostate disorder is clearly contemplated within the noncompensable evaluation currently assigned and consistent with no more than mild cystitis, especially in view of the lack of greater impairment demonstrated objectively or otherwise warranting the assignment of a compensable evaluation. Overall, the preponderance of the evidence is against the grant of a compensable evaluation prior to February 17, 1994, for benign prostatic hypertrophy with resection. II. Other Considerations Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant with regard to his claim for an increased (compensable) evaluation for benign prostatic hypertrophy with resection. We find that such service-connected disorder at issue does not meet or more merely approximate the criteria required for a compensable evaluation under the above-noted code provisions. 38 C.F.R. § 4.7 (1993). We also find that the evidence discussed herein does not show that the veteran's service-connected benign prostatic hypertrophy with resection presents either an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. In particular, the disability requires neither frequent periods of hospitalization nor regular treatment. Indeed, appreciable impairment associated with the service-connected disorder is not shown as illustrated by the clinical data of record by the absence of regular treatment for such disability. Thus, we also find that the service-connected disability does not present marked interference with employment. The veteran does not contend otherwise. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (1993) is not warranted. III. Special Monthly Compensation on Account of Loss of Use of a Creative Organ The veteran's primary argument with respect to the loss of use issue, as illustrated by his testimony at a hearing before the Board in Washington, D.C., in July 1988 is essentially that he has loss of use of a creative organ due to infertility associated with chronic retrograde ejaculation stemming from a transurethral resection of the prostate in December 1985 for urinary flow obstruction associated with his service-connected benign prostatic hypertrophy. Significantly, we note that the provisions of 38 U.S.C.A. § 1114(k) (West 1991) state that if a veteran, as a result of service-connected disability, suffers the loss of use of a creative organ, he will be entitled to a rate of special monthly compensation. Moreover, we note that loss of use of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organs. Loss of use of one testicle will be established when examination by a board finds that: (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of paired normal testicle; or (b) The diameters of the affected testicle are reduced to one-half or less of the corre- sponding normal testicle and there is alteration of consistency that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) If neither of the conditions in subparagraphs (1)(i)(a) or (b) of this paragraph is met, when a biopsy, recommended by a board, including a genitourologist, and accepted by the veteran, establishes the absence of spermatozoa. 38 C.F.R. § 3.350(a)(1)(i)(a)(c) (1993). Moreover, we note that extensive research by the Board with respect to the veteran's claim disclosed that recognized medical treaties accept that retrograde ejaculation may follow transurethral or open surgical resection of the bladder neck or prostate which may be confirmed by the presence of numerous sperm in a post ejaculation urine specimen. Richard J. Sherins, M.D., and Stuart S. Howards, M.D., Male Infertility, in 1 Campbell's Urology 667 (Patrick C. Walsh, M.D., et al. eds., 5th ed. (1986). A comprehensive review of the record shows that, following a transurethral resection of the prostate in December 1985 for relief of urinary flow obstruction associated with his service-connected benign prostatic hypertrophy, the veteran first complained of retrograde ejaculation in August 1986 as part of complications related to the previous prostate surgery. On a report of a VA genitourinary examination in October 1986, the examiner reviewed the veteran's history of transurethral resection in December 1985 at Walter Reed Army Hospital. It was noted that the veteran was married for the third time and was 60 years of age and claimed that he had retrograde ejaculation. From previous marriages, he had two children, ages 32 and 38. While the examiner indicated that the veteran had retrograde ejaculation, the loss of use of a creative organ was essentially ruled out. It was noted that the veteran's testes were normal and that they were probably still producing spermatoid. The penis was normal, with no evidence of impotency. Diagnosis was transurethral resection of the prostate with retrograde ejaculation without evidence of loss of use of a creative organ. In response to such diagnosis, a VA Associate Chief of Staff/Ambulatory Care submitted a statement dated in August 1987, noting that the reported VA diagnosis in October 1986 consisted of contradictory statements in view of the fact that infertility resulting from retrograde ejaculation had been interpreted by the Board in a separate decision as the equivalent of the loss of function of a creative organ. A copy of the cited Board decision was submitted for the record. Additionally, the record discloses that the veteran was afforded an evaluation at a VA urology clinic in May 1989 in relation to his claim of complete loss of ejaculation from a transurethral resection of the prostate performed at Walter Reed Hospital i 1985. Apparently, he was to have an examination by a urologist to demonstrate that he had "complete loss of ejaculation." He still had an erection and reached orgasm. It was noted that he needed to do masturbation and then both the urethra and bladder needed to be examined. On a follow-up examination on June 14, 1989, the examiner discussed the procedure to demonstrate "total retrograde ejaculation" with the veteran, that is, that he would have to masturbate; then the examiner would examine him to see how much ejaculate came out and collect the fluid that comes out for semen analysis; and then he would be catheterized to obtain fluid in the bladder for semen analysis. While all arrangements were made for prompt examination of the veteran's specimen, the veteran stated that he could not masturbate. Thus the test could not be undertaken. Accordingly, the examiner could not provide medical evidence of "total retrograde ejaculation" as required. The veteran was advised that if he changed his mind to let the examiner know so that a new examination could be scheduled. Significantly, we note that other VA clinical evidence added to the record along with a statement submitted from the veteran tends to suggest that following his scheduled morning VA examination on June 14, 1989, the veteran had an orgasm without ejaculation during that afternoon. Then without urinating, he later went to a VA medical center complaining of sexual dysfunction and gave a urine sample in the presence of a registered nurse. The urinalysis study reflected the presence of numerous spermatozoa present. A comprehensive analysis of the record essentially discloses that retrograde ejaculation is recognized as a consequence of transurethral resection of the prostate that may cause infertility as evidenced by the presence of numerous sperm in a post ejaculation urine specimen. Pertinent objective tests are nearly impossible to officially validate whether undertaken at home or in a medical facility since some degree of privacy is offered along with opportunity to tamper with the test results by the individual in either setting. In this case, we note that the veteran's credibility with respect to the conditions under which he gave his urine sample to the VA on June 14, 1989 is unchallenged by the record. Accordingly, in view of the relative equipoise nature of the evidence of record, we find that the veteran is clinically infertile as a consequence of retrograde ejaculation associated with transurethral resection of the prostate for relief of symptoms associated with his service-connected prostate condition and therefore meets the criteria for special monthly compensation for loss of use of a creative organ. ORDER An increased compensable evaluation prior to February 17, 1994, for benign prostatic hypertrophy, status post resection, is denied. Entitlement to special monthly compensation based on loss of use of a creative organ is granted, subject to the controlling regulations governing the award of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 J. U. JOHNSON The Board of Veterans' Appeals Administrative Procedures Improvement Act of 1994, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.