Citation Nr: 0003793 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-04 847A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased (compensable) schedular rating for meatal stenosis. 2. Entitlement to an increased schedular rating for prostatitis, currently evaluated as 40 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from April 1955 to February 1959. The Department of Veterans Affairs (VA) Regional Office (RO) denied an increased rating for the meatal stenosis in July 1997. The veteran duly appealed that decision to the Board of Veterans' Appeals (the Board). The RO also denied a compensable rating for prostatitis in its July 1997 decision. The veteran filed a notice of disagreement and was issued a Statement of the Case. In July 1998, the RO increased the veteran's disability rating for his prostatitis to 40 percent. The veteran filed a substantive appeal (VA Form 9) in August 1998. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (the Court) held that regarding a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. The Court also stated that it follows that such a claim remains in controversy "where less than the maximum available benefits are awarded." Id. at 38. Accordingly, the issue of entitlement to an increased disability rating for prostatitis remains in appellate status and will be addressed below. The veteran applied for a total rating based upon individual unemployability due to service-connected disability in August 1998, and the RO denied such claim that month and then notified the veteran of its decision and of his right to appeal it within one year thereof. There is no substantive appeal of record. In August 1999, the RO denied the veteran's claim of entitlement to service connection for prostate cancer, claimed as secondary to his service- connected prostatitis. To the Board's knowledge, that issues has not been appealed. Accordingly, the Board has no jurisdiction over those matters. FINDINGS OF FACT 1. The veteran's service-connected meatal stricture causes recurrent balanitis but does not cause urine leakage, frequency, colic, stone formation or loss of erectile power, and it does not require dilatation every two to three months. 2. The veteran's prostatitis causes voiding dysfunction and he takes medication for benign prostatic hypertrophy. No urine leakage or urinary or stress incontinence has been reported. CONCLUSIONS OF LAW 1. The criteria for an increased (compensable) schedular rating for meatal stenosis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.115a, 4.115b, Diagnostic Codes 7509, 7511, 7518, 7522 (1999). 2. The criteria for a schedular disability rating in excess of 40 percent for prostatitis have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will set forth a joint factual background. It will then set forth law and regulations common to both claims. Thereafter, separate analysis of each claim will ensue. Factual background A March 1995 private medical record indicates that cystoscopy in January 1995 was negative for stricture. On private medical evaluation in September 1996, the veteran advised the physician that he had a history of stricture and that he would get up six times per night. Clinically, he had a slight redness over the head of his penis, and the prostate was about 50 percent enlarged. The impression was recurrent balanitis. VA urinalysis in September 1996 revealed trace blood. On VA evaluation in October 1996, the veteran complained of recurrent urethral stricture and he brought with him an outside laboratory study which indicated that urinalysis was negative. He reported that his last cystoscopy was normal, but that he still had a lot of trouble urinating, and that he had nocturia four to five times per night. Clinically, his prostate had 2+ enlargement and it was nontender. On VA urology consultation in December 1996, the veteran reported nocturia times five or six, urgency, hesitancy, decreased stream, dribbling, and poor emptying, but no day frequency or decreased stream in the day. He also reported pain on ejaculation. It was noted that urinalysis from October 1996 was negative. Clinically, there was no balanitis. The prostate was prominent bilaterally, with sulci, and possibly increased firmness. It was nontender. Urethral stricture was assessed. Cystoscopy was scheduled. VA cystoscopy for urethral stricture in December 1996 revealed that there was 1+ trabeculation of the bladder. The urethra exhibited stricture. The stricture was dilated with a cystoscopic instrument. The diagnosis was urethral stricture. On VA genitourinary follow-up evaluation in January 1997, the veteran reported feeling lousy and having increased nocturia and dysuria as well as hesitancy and incomplete emptying. It was noted that a urine culture produced no growth times three. Increased prazosin (treats benign prostatic hypertrophy) was prescribed. On VA genitourinary evaluation in March 1997, the veteran complained of nocturia, hesitancy, dribbling, and poor emptying. The assessments were possible prostatitis, and bladder outlet obstruction. Bilateral prostatic needle biopsies by VA in April 1997 revealed prostatic hyperplasia. In August 1998, the veteran stated that his penis was curving, and that there was a knot in the area of the meatal stricture. Pertinent law and regulations Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (1999). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (1999). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. 38 C.F.R. § 4.20. With respect to the two service-connected disabilities which are at issue in this appeal, certain provisions of 38 C.F.R. §§ 4.115a and 4.115b, set forth immediately below, are potentially applicable. Sec. 4.115b Ratings of the genitourinary system--diagnoses. ------------------------------------------------------------- ----------- 7509 Hydronephrosis: Severe; Rate as renal dysfunction. Frequent attacks of colic with infection (pyonephrosis), kidney function impaired................................................ 30 Frequent attacks of colic, requiring catheter drainage..... 20 Only an occasional attack of colic, not infected and not requiring catheter drainage..................................................... .... 10 7511 Ureter, stricture of: Rate as hydronephrosis, except for recurrent stone formation requiring one or more of the following: 1. diet therapy 2. drug therapy 3. invasive or non-invasive procedures more than two times/year................................................... .............................. 30 7518 Urethra, stricture of: Rate as voiding dysfunction. 7522 Penis, deformity, with loss of erectile power 20 7527 Prostate gland injuries, infections, hypertrophy, postoperative residuals: Rate as voiding dysfunction or urinary tract infection, whichever is predominant. Sec. 4.115a Ratings of the genitourinary system-- dysfunctions. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The following section provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decisionmaker to these specific areas dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. ------------------------------------------------------------- ----------- Voiding dysfunction: Rate particular condition as urine leakage, frequency, or obstructed voiding Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.... 60 Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day..................................................... 40 Requiring the wearing of absorbent materials which must be changed less than 2 times per day............................................ 20 Urinary frequency: Daytime voiding interval less than one hour, or; awakening to void five or more times per night............................................. 40 Daytime voiding interval between one and two hours, or; awakening to void three to four times per night....................... 20 Daytime voiding interval between two and three hours, or; awakening to void two times per night..................................... 10 Obstructed voiding: Urinary retention requiring intermittent or continuous catheterization.............................................. ............................ 30 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; markedly diminished peak flow rate (less than 10 cc/sec). 3. Recurrent urinary tract infections secondary to obstruction. 4. Stricture disease requiring periodic dilatation every 2 to 3 months....................................................... ...................... 10 Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year................................. 0 Urinary tract infection: Poor renal function: Rate as renal dysfunction. Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management........................... 30 Long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management......................... 10 Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no percent evaluation, a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1999). Analysis Preliminary matters - well groundedness of the claims/duty to assist/standard of proof A claim for an increased rating is regarded as a new claim and is subject to the well-groundedness requirement. 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). In order to present a well grounded claim for an increased rating of a service- connected disability, the veteran need only submit his or her competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. See Proscelle, 2 Vet. App. at 631, 632. The veteran has stated, in essence, that the symptoms of his service-connected disabilities have increased. The Board accordingly finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Given the well groundedness of the claims, the Board must determine whether VA has met its duty to assist the veteran with the claims. The Board concludes that all relevant facts have been properly developed with respect to the disabilities at issue. The Board believes that it can make an informed decision based on the evidence now or record. The veteran has pointed to no significant evidence which has not been obtained. The Board accordingly concludes that no further assistance to the veteran is required in order to comply with VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Once the evidence has been assembled, it is the Board 's responsibility to evaluate the evidence of record. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion Entitlement to an increased (compensable) schedular rating for meatal stenosis. The veteran's service-connected meatal stricture has been rated by the RO as noncompensably disabling by analogy to Diagnostic Code 7511 [stricture of ureter]. As noted above, stricture of the ureter is rated as hydronephrosis under Diagnostic Code 7509, except if recurrent stone is present . The veteran's meatal stricture does not cause any renal colic or stones, so rating the disability by analogy to Diagnostic Code 7509 or 7511 as the RO has does not permit a compensable rating. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board has carefully considered, in light of 38 C.F.R. § 4.20, whether rating the veteran's meatal stenosis may be more appropriate. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Rating the disability under Diagnostic Code 7518 [stricture of urethra] requires considering the voiding dysfunction criteria found in 38 C.F.R. § 4.115a. However, as will be discussed in detail below, the veteran's prostatitis is currently rated as voiding dysfunction. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1996); Fanning v. Brown, 4 Vet. App. 225 (1993). Accordingly, Diagnostic Code 7518 is not for consideration under the particular facts of this case. Because in August 1998 the veteran has asserted that his meatal stricture has caused his penis to be curved and to have a knotty area on it in the area of the stricture, the Board has also considered the provisions of Diagnostic Code 7522 [penis, deformity, with loss of erectile power]. While the veteran has alleged that his penis is curved and that it has a knotty feeling in the area of the meatal stricture. However, there is no objective medical evidence of record which documents such deformity. Moreover, the veteran has not alleged that he has lost his erectile power. Indeed, a December 1996 VA medical record specifically indicates that he can ejaculate. The criteria for a 20 percent rating under Diagnostic Code 7522 require deformity with loss of erectile power. Neither symptom has been objectively demonstrated. Under the circumstances, 38 C.F.R. § 4.31 warrants a noncompensable disability rating under Diagnostic Code 7522. In summary, for the reasons and bases expressed above, the Board concludes that since the preponderance of the evidence is against an increased rating for meatal stenosis. Entitlement to an increased schedular rating for prostatitis, currently evaluated as 40 percent disabling. The veteran's service-connected prostatitis has been rated by the RO as 40 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7527. As discussed above, under Diagnostic Code 7527, prostate hypertrophy is rated as either voiding dysfunction or urinary tract infection, whichever is predominant. In this case, there is no dispute that voiding dysfunction is predominant. Indeed, there is no evidence of urinary tract infection. There is no question that the veteran's prostatitis causes voiding dysfunction, and he takes medication for it. No urine leakage or urinary or stress incontinence has been reported. The veteran states that he has five or six episodes of nocturia per night, and that he has urgency, hesitancy, decreased stream, dribbling, poor emptying, and dysuria. The veteran's prostatitis when rated based upon urinary frequency warrants a 40 percent rating based upon awakening five or more times per night to urinate. There is not a higher schedular rating when rating based on urinary frequency. When rated based upon voiding dysfunction, it is clear that the veteran does not meet or nearly approximate the criteria for a 60 percent rating. He does not require the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. The veteran states that he does not have daytime frequency, and he has not complained of incontinence, and there is no indication that he uses an appliance or wears absorbent materials. See 38 C.F.R. § 4.115a. For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the assignment of an increased disability rating for the veteran's service-connected prostatitis. The benefit sought on appeal is accordingly denied. ORDER Entitlement to an increased disability rating for meatal stenosis is denied. Entitlement to a disability rating in excess of 40 percent for prostatitis is denied. Barry F. Bohan Member, Board of Veterans' Appeals