Citation Nr: 0007050 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 93-15 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for prostatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from August 1948 to August 1951 and from January 1952 to May 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1991 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied entitlement to a compensable evaluation for the veteran's service-connected prostatitis. In a July 1992 decision, the RO increased the disability rating assigned to the veteran's prostatitis from zero percent to 10 percent, effective January 14, 1991. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Since VA regulations provide for disability ratings greater than 10 percent for prostatitis, the matter remains on appeal. This matter was originally before the Board in March 1995 when it was remanded in order to obtain private treatment records and VA medical examination. The claim was again before the Board and was the subject of a May 1997 remand which requested that the RO locate additional private medical records, and directed that the veteran be afforded VA genitourinary examination to determine the extent and severity of the prostatitis. The above listed development has been completed, and this claim is again before the Board. In a February 2000 informal hearing presentation, the veteran's representative asserted that this claim should be remanded again, based on Stegall v. West, 11 Vet. App. 268 (1998), since the RO failed to comply with the directives of the Board's May 1997 remand. For reasons explained below, the Board finds that although there may not have been complete compliance with the Board's remand, there was substantial compliance and any shortcoming was harmless. In contrast with Stegall, the Board finds that appellate review of the record in the case at hand is not frustrated by any failure to adhere completely with the May 1997 remand directives. See Evans v. West, 12 Vet. App. 22, 31 (1998) (holding that Stegall duty was not violated by a failure to comply with remand instructions where the failure did not frustrate appellate review). In August 1996, the RO issued a decision which denied service connection for disability of the penis and lower abdomen, claimed as secondary to the service connected prostatitis. The record reflects that the veteran has not submitted a notice of disagreement with that decision. A claimant's timely filed notice of disagreement initiates an appeal of an adjudicative determination by the agency of original jurisdiction and expresses the desire to contest the result of such an adjudication. As the veteran has not addressed the issue of entitlement to secondary service connection for disability of the penis and lower abdomen in either a notice of disagreement or in any other communication received since the RO issued its August 1996 decision, the issue of entitlement to the same is not now before the Board. See 38 C.F.R. §§ 20.200, 20.201 (1999). In August 1999, the veteran requested a hearing before a Member of the Board. He withdrew the hearing request in December 1999. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The medical evidence of record is negative for a current diagnosis of prostatitis. 3. A physician who provided the veteran a genitourinary examination for disability evaluation purposes in June 1999 determined that the veteran suffered from urethral stricture and benign prostatic hypertrophy, but that these conditions are not related to the service-connected prostatitis. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7527 (prior to September 8, 1994); 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7527 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background. Service medical records showed that the veteran underwent cystoscopy and a retrograde procedure in March 1951 for a defect of the right kidney. Another service medical record dated in March 1951 noted that the veteran's prostate was slightly boggy. Other service records indicate that prostatic massages were performed during the first part of April 1951. VA examination in July 1958 resulted in a diagnosis of chronic prostatitis, nonvenereal, mild in degree. The veteran was awarded service connection for prostatitis, evaluated as zero percent disabling, by a rating decision dated in August 1958. In July 1991, the veteran submitted private medical records revealing that he had been treated in April 1991 after presenting with complaints of pain, discomfort, and nocturia times one. An excretory urogram taken in April 1991 revealed tiny right renal calculi and a few prostatic calcifications. Impression was probable mild inflammatory change in the right renal collecting system. Treating the private medical records as an informal claim for an increased evaluation for his prostatitis, the RO issued a decision in September 1991 which denied the veteran's claim. The RO informed the veteran that the zero percent disability rating assigned to the prostatitis was continued as the evidence did not meet the rating criteria that would warrant a compensable evaluation for prostatitis, i.e., the evidence did not show pyuria with diurnal and nocturnal frequency associated with prostatitis. In October 1991, the veteran submitted letters from other private physicians from whom he had sought treatment. A letter from D. Armstrong, M.D. noted that the veteran was seen in September 1991 after presenting with complaints of urinary frequency and difficulty urinating. Dr. Armstrong's physical examination indicated some enlargement of the prostate with possible infection. Pertinent diagnoses were prostatitis and possible urinary tract infection. W. Spankus, M.D. provided a letter stating that "[m]y records indicate that [the veteran] has problems with urinary frequency, dating back to 1978." The veteran was afforded VA genitourinary examination in December 1991. The veteran reported that he had had several urinary tract infections during the prior few years. The veteran complained of pain on initiation and termination of urination, pain on ejaculation, with urgency and frequency of urinating. He also complained of nocturia times two, some straining, no dysuria or hematuria, and no incontinence. He reported that he had a moderate force of stream and took no medication. On examination, the veteran's prostate was 35 grams and benign. A urinalysis was clear. A large left varicocele was noted. Diagnosis was left varicocele, and benign prostatic hypertrophy. By a July 1992 decision, the RO increased the disability rating assigned to the veteran's prostatitis from zero percent to 10 percent, effective January 14, 1991. The veteran initiated a timely appeal of that decision, and requested additional VA examination. The veteran presented for VA genitourinary examination in December 1992 with lower tract obstructive symptoms, and complained of a mild decrease in force of stream. The VA physician noted a "questionable" history of urethral stricture disease. Objective examination revealed bilateral testicular atrophy, a left varicocele, and 10 to 20 white blood cells in expressed prostatic secretions. Evaluation of lower tract obstructive symptoms included a minimal or mild decreased force of stream, absence of pyuria in the uric acid, no tenesmus or significant pain on urination, and no incontinence. The VA physician opined that the examination was consistent with a minimally tender prostate. Diagnosis was mild prostatitis and questionable history of urethral stricture disease. The examiner concluded his report by opining that the veteran "is not incapacitated by any stretch of the imagination from the above listed diagnosis." In his substantive appeal (VA Form 9), the veteran stated that he has had problems urinating since the in-service surgical procedure performed in 1951, including leakage associated with an inability to retain for more than one and a half hours; "much discomfort" from onset to completion of urination; and a nighttime frequency requiring him to awaken from one to four times every night. He expressed that the symptoms had consistently worsened, and that he was experiencing increased discomfort in his penis and lower abdomen. The veteran's representative, in a February 1994 informal hearing presentation, asserted that service connection for the veteran's claimed discomfort in his penis and lower abdomen was warranted, alleging that those conditions were secondary to the service-connected prostatitis. The veteran's claim was before the Board in March 1995, at which time a remand was issued in order to obtain outstanding private and VA medical records. The Board's remand also directed that another VA examination should be scheduled. VA outpatient records were obtained that reflect treatment the veteran received for his genitourinary condition between February 1993 and August 1993. Those records revealed the veteran's chief complaint of continued burning with urination. A urethrogram taken in March 1993 showed no stricture, the prostate was 30 grams, and it was mild to moderate in tenderness. The physician performing the urethrogram diagnosed benign prostatic hypertrophy and resolving prostatitis. The outpatient records reveal that the veteran was offered transurethral resection of the prostate, which he declined. Private medical reports were obtained from A. Haddock, M.D., reflecting that physician's treatment of the veteran for glaucoma, mild anxiety, and a nasal obstruction. On clinical evaluation of the veteran in March 1995, Dr. Haddock noted the veteran's treatment at VA for genitourinary disorders, and that prescribed medication "has really helped him out there." At VA examination in June 1995, the veteran complained of nocturia three to five times, intermittency, and frequency. He reported that he was able to empty his bladder, but complained of post void dribbling and moderate hesitancy. The veteran denied dysuria and hematuria. It was noted that he had some, although minimal, stress urinary incontinence for which he wore pads. Objective examination of the abdomen was unremarkable. The scrotum was noted as having a large left varicocele and hydrocele. Examination of the prostate revealed a 25 gram prostate without evidence of mass. An AUA Symptom score was 33. Diagnosis was lower tract outlet symptoms, "presumably a benign prostatic hyperplasia." The VA physician opined that the veteran "may benefit from a trial of Hytrin or Proscar or alternatively a transurethral resection of the prostate as was offered to him in 1993." In a February 1996 clinical report from Dr. Haddock, it was noted that the veteran presented for treatment after he "[s]tarted having ulcer problems again." Diagnoses were peptic ulcer disease and mild anxiety. After post-remand development, the RO issued a rating decision in August 1996 which continued the 10 percent evaluation for the veteran's prostatitis. In the same decision, the RO denied service connection for a disability of the penis and/or lower abdomen, claimed as secondary to the service-connected prostatitis, holding that there was no medical evidence of record showing that any disability of the penis or lower abdomen was secondary to the prostatitis. The veteran's claim was again before the Board in May 1997, at which time a second remand was issued directing the RO to obtain additional private and VA medical records, and to schedule the veteran for an additional VA genitourinary examination. Specifically, the Board remand requested the following: All indicated diagnostic tests and procedures should be accomplished, to include the urinalysis with microscopic examination recommended by the examiner in June 1995. The report should summarize all significant positive findings, to include an assessment of renal function. A copy of the data provided by the veteran which served as a basis for the AUA Symptom score should be included with the examination report and the examiner should comment on the meaning and significance of the score assigned. The examiner should also comment on the frequency, duration, and severity of past episodes of prostatitis and specifically state whether prostatitis is present at the time of the examination. The examiner should also state whether or not there is any relationship between prostatitis and benign prostatic hyperplasia . . . and identify those symptoms which are attributable to prostatitis versus those which are attributable to [benign prostatic hyperplasia]. Subsequent to the May 1997 remand, private medical records were obtained from E. McCoig, M.D., reflecting that the veteran presented in May 1997 with chief complaint of depression. Dr. McCoig's noted that the veteran had a past medical history including removal of a tumor from the brain stem, hemorrhoid surgery, and a ruptured peptic ulcer disease. Diagnosis was depression. There were no findings or statements regarding prostatitis in Dr. McCoig's report. The veteran presented for VA genitourinary examination in January 1999. He complained of hesitancy, decreased force of stream, urgency incontinence requiring four pads a day, daytime frequency, and nocturia. He denied a history of dysuria or gross hematuria. Physical examination revealed that his prostate was larger than 40 grams. The VA physician's impression was that the veteran's lower tract obstructive and irritating symptoms were most likely due to benign prostatic hyperplasia. In a deferred rating decision issued in March 1999, the RO determined that the January 1999 examination was not complete inasmuch as it did not provide the information requested by the Board's May 1997 remand. Accordingly, another VA examination was requested. During VA examination in June 1999, it was noted that the veteran had been followed for most of his course by a private urologist. The VA examiner's review of the private physician's records revealed that the veteran had had two or three urinary tract infections, and that treatment with antibiotics provided symptomatic relief. The veteran's frequency was noted as nocturia four to five times. The veteran reported that his daytime frequency was every two hours. He complained of a poor stream, incomplete emptying, and some hesitancy. The veteran reported that he experienced incontinence, mostly of urgency in nature. An AUA score of approximately 28 was obtained, which the VA examiner stated was in the highest of all bothersome symptom scores. It was noted that the veteran wore diapers, which required changing approximately three to four times a day. Details of the veteran's medical history found no treatment for renal colic or bladder stones, acute nephritis, and no hospitalizations for urinary tract infection. It was noted that the veteran did not have a history of undergoing urethral dilatations, and the VA physician opined that catheterization was not needed. In describing the effects of the condition on the veteran's occupation and daily activities, it was noted that he had retired from employment, but experienced a significant decrease in self-esteem and motivation due to persistent urinary incontinence. The veteran also noted problems associated with social embarrassment if he did not wear diapers. Physical examination in June 1999 showed that the abdomen was soft, nondistended, and nontender. There was no evidence of masses or hepatomegaly. The bladder was not palpable. A grade 3 left varicocele was found. Both testicles were atrophied, the left testicle significantly. Review of diagnostic and clinical testing by the veteran's private physicians revealed that in May 1996 his prostate-specific antigen was 0.6, creatinine was 1.0, and testosterone was 416; all considered within normal limits. Urinalysis performed by the VA physician revealed three to four white blood cells, no red blood cells, no bacteria, and a few epithelial cells. Uroflowmetry was indicated, but could not be performed because the veteran had voided prior to the examination. By a bladder scan, the examiner measured a post-void residual of 30 cc., the normal of which was noted as less than 100 cc. The examiner provided impressions of urinary frequency, urge incontinence, and history of urinary tract infections, and stated that the etiology of these symptoms "could be from urethral stricture versus BPH [benign prostatic hypertrophy] versus detrusor instability of unknown etiology." In an addendum to the June 1999 examination, the VA physician reiterated that the veteran had a urethral stricture, and BPH. The examiner stated that the veteran also had a sexual/erectile dysfunction which was not uncommon at the veteran's age (69) and a varicocele. It was noted that a transurethral resection of the prostate was planned. The physician offered the following opinion: "None of these conditions is related to prostatitis." In a supplemental statement of the case issued in August 1999, the RO found that recent VA examinations and private medical reports were negative for a current diagnosis of prostatitis. Because the most recent examination revealed that none of the veteran's then current symptoms and/or conditions were related to the veteran's prostatitis, the 10 percent evaluation of that disability was continued. The veteran has contended in several letters to the RO that his genitourinary disorder has been manifest ever since he underwent a cystoscopy and a retrograde procedure in 1951. He has asserted that every physician he had seen opined that his urinary problem could be causally related to the cystoscopy in 1951. The veteran has also stated several times that he does not understand why VA has not taken the in-service cystoscopy and retrograde procedure into consideration. In an informal hearing presentation dated in February 2000, the veteran's representative opined that the instant claim should be remanded because the RO has failed to comply with the most recent remand action in that: 1) the VA physician did not give a statement as to whether there is any relationship between prostatitis and benign prostatic hypertrophy; and 2) the VA physician did not identify those symptoms which are attributable to prostatitis versus those which are attributable to benign prostatic hypertrophy. Legal Criteria. Under the 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. Part 4 (1999). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The requirements set forth in these regulations, mandating an evaluation of the complete medical history of the veteran's claimed disability, operate to protect veterans against adverse decisions based on a single, incomplete or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. 38 C.F.R. §§ 4.1, 4.2 (1999); Schafrath, 1 Vet. App. at 593-94. The veteran's disability, however, must be reviewed in relation to its history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (1999); where there is a question as to which or two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (1999); and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (1999); Schafrath, 1 Vet. App. 589. In any case, with particular regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. §§ 4.1 and 4.2, VA regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Id. at 57-58; Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board notes that the rating criteria relevant to the genitourinary system underwent revisions effective February 17, 1994, and again effective September 8, 1994, during the pendency of this appeal. The Court has held that when the regulations concerning entitlement to a higher rating undergo a substantive change during the course of an appeal, the veteran is entitled to resolution of his claim under the criteria which most favorable. See Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991). The veteran's disability is currently rated under Diagnostic Code 7527. The Board will set forth both the old and new criteria pertaining to prostatitis and make a determination as to which of those criteria is most favorable to the veteran. Under the old rating criteria, Diagnostic Code 7527 provided that prostate infections were evaluated as chronic cystitis under Diagnostic Code 7512 in accordance with resulting functional disturbance of the bladder. A 10 percent evaluation was assigned for moderate chronic cystitis with pyuria and diurnal and nocturnal frequency. A 20 percent evaluation contemplated moderately severe cystitis with diurnal and nocturnal frequency with pain and tenesmus. A 40 percent evaluation required severe cystitis with urination at intervals of one hour or less; contracted bladder. 38 C.F.R. Part 4, Diagnostic Code 7527 (prior to September 8, 1994). Under the new rating criteria, prostate gland injuries, infections, hypertrophy, and postoperative residuals will be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. Part 4, Diagnostic Code 7527 (1999). A 20 percent evaluation is assigned for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent evaluation contemplates requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. Under urinary tract infection, a 10 percent rating is assigned for long term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating contemplates recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two/times a year), and/or requiring continuous intensive management. Urinary frequency is rated 20 percent disabling with daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating contemplates daytime voiding interval of less than one hour or awakening to void five or more times per night. When a reasonable doubt arises regarding the degree of disability or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. Analysis. A claim for an increased rating is regarded as a new claim and is subject to the well-groundedness requirement. 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 competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. Id. at 631-632; Jones v. Brown, 7 Vet. App. 134, 138 (1994). The veteran has asserted that his service- connected prostatitis has increased in severity, and thus is more disabling than contemplated by the current evaluation. The Board holds that his claim of increasing severity of said disability establishes a well-grounded claim for an increased evaluation. See Proscelle, 2 Vet. App. at 631. VA has afforded the veteran VA medical examinations; VA has obtained the pertinent medical records from the veteran's treating physicians; and the veteran has not identified any additional pertinent evidence that is not of record. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. Initially, the Board will address the contention of the veteran's representative that VA examination of the veteran in June 1999 was inadequate, under Stegall, due to the examiner's alleged failure to follow the instructions of the Board's May 1997 remand. Specifically, the representative asserts that the VA examiner failed to address the Board's request to state whether or not there is any relationship between prostatitis and benign prostatic hyperplasia, and failed to identify those symptoms which are attributable to prostatitis versus those which are attributable to benign prostatic hyperplasia. However, in the addendum to the report the physician clearly stated that it was his opinion that the benign prostatic hyperplasia was not related to the service-connected prostatitis. The physician also clearly indicated that all of the veteran's current genitourinary symptoms, including urinary frequency and urge incontinence, were due to benign prostatic hyperplasia, urethral stricture, and/or detrusor instability and that none of these conditions was related to the prostatitis. While the physician recommended additional studies, these studies were to investigate the conditions identified on examination, and not prostatitis. Accordingly, the Board finds that the physician did adequately address the concerns raised by the Board in the May 1997 remand. The Board finds that the statements of the VA examiner are sufficient to render an equitable decision of the veteran's claim. To the extent that any actions by the VA examiner and RO are erroneous, the Board finds them to be harmless, and that the RO substantially complied with the Board's prior remand instructions. Thus, the Board holds that appellate review of the record in the case at hand is not frustrated by any failure to adhere to the May 1997 remand order. See Evans, 12 Vet. App. at 31. Additionally, the Board also notes the veteran's contention that the symptoms of a genitourinary disorder he experiences are directly the result of medical procedures he underwent in 1951. However, the Board must note that the veteran, not being a medical professional, is not qualified to offer testimony on such medical issues as causation or etiology. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that lay persons are not competent to offer medical opinions). Also noted are the veteran's assertions to the effect that the physicians he had seen explained that his genitourinary disorders could be related to the cystoscopy and retrograde procedure he underwent in 1951. The Court has held, however, that a lay person's statement about what a physician told him or her, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board recognizes that Dr. Armstrong diagnosed the veteran with prostatitis and possible urinary tract infection in October 1991. It is also noted that VA examination in December 1992 revealed a diagnosis of mild prostatitis. However, the Board finds it significant that the medical findings and opinions subsequent to the December 1992 VA examination, including private medical reports as well as findings and opinions of VA physicians, are negative for any diagnoses of active prostatitis. VA examination in March 1993 revealed that the veteran's prostatitis was resolving. As shown above, the most recent examinations of record have established that the veteran's voiding problems, including urinary frequency and urge incontinence, are causally related to urethral stricture, benign prostatic hypertrophy or detrusor instability, and that none of these conditions are related to the veteran's service-connected prostatitis. Urinalysis in June 1999 revealed three to four white blood cells, no red blood cells, no bacteria, and a few epithelial cells. Significantly, the examiner in June 1999 failed to diagnose prostatitis or residuals thereof. The examiner attributed the veteran's urinary problems to conditions other than the veteran's service-connected prostatitis. As noted above, the physician who conducted the June 1999 examination provided an opinion that none of the conditions productive of the veteran's urinary problems, such as urinary frequency and urge incontinence, are related to his service-connected prostatitis. Inasmuch as the VA examiner is the most recent, if not the only, physician to specifically address any relationship between the veteran's current symptomatology and his service-connected disability, the Board finds that this physician's medical findings and opinions provide the evidentiary "weight" necessary to establish a preponderance of evidence against the veteran's claim for an increased disability rating in excess of 10 percent for prostatitis. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to a disability rating in excess of 10 percent for prostatitis. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7527 (prior to September 8, 1994); 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7527 (1999). Because there is not an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of entitlement to a disability rating in excess of 10 percent for prostatitis, the veteran is not entitled to the favorable application of 38 U.S.C.A. § 5107(b). The benefit sought on appeal is therefore denied. ORDER Entitlement to a disability rating in excess of 10 percent for prostatitis is denied. Gary L. Gick Member, Board of Veterans' Appeals