On appeal from the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado
THE ISSUES
1. Entitlement to service connection for gynecomastia.
2. Entitlement to service connection for adhesions.
3. Entitlement to an initial compensable evaluation for scar
status-post retroperitoneal lymph node removal.
4. Entitlement to an initial evaluation in excess of 20
percent for status-post left orchiectomy and lymph node
dissection.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
WITNESS AT HEARING ON APPEAL
Appellant and C.B., M. D.
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The Veteran served on military duty from August 1985 to
August 2005.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2005 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Houston, Texas. By that rating action the RO denied
service connection for gynecomastia and adhesions. The RO
also awarded service connection for status-post left
orchiectomy and lymph node dissection and scar status-post
retroperitoneal lymph node removal; initial 20 and
noncompensable evaluations were assigned, effective September
1, 2005--the day after the Veteran was discharged from
military service, since his original claim for service
connection for these disabilities was received within one
year of that service. The Veteran timely appealed the RO's
September 2005 rating action to the Board, and this appeal
ensued. Jurisdiction of the claims files currently resides
with the Denver, Colorado RO.
In March 2009, the Veteran testified before the undersigned
at a hearing conducted at the Board in Washington, DC. A
copy of the hearing transcript has been associated with the
claims files. After the hearing, the Veteran submitted
additional private medical evidence in support of his claims
along with a waiver of initial RO consideration. Thus, a
remand, in accordance with 38 C.F.R. § 20.1304 (2008), is not
warranted. (See, March 2009 letter from the Veteran's
representative to the Board).
During the March 2009 hearing, the Veteran, through his
authorized representative, raised the issues of entitlement
to a separate disability rating for a digestive disorder, as
secondary to having undergone a retroperitoneal lymph node
dissection (RPLND) during military service. See, Transcript
(T.) at page (pg.) 3. Because this issue has not been
developed for appellate review, it is REFERRED to the RO for
appropriate action.
Although during the March 2009 hearing, the Veteran also
withdrew from appellate consideration the issue of an initial
evaluation in excess of 20 percent for status-post left
orchiectomy and lymph node dissection, prior to the
promulgation of this decision, the Veteran has stated an
intention to reinstate the issue for appellate consideration.
The Board will therefore undertake appellate review of the
issue.
FINDINGS OF FACT
1. During his hearing before the undersigned, the Veteran
indicated that he wished to withdraw his appeal of the denial
of his claim of service connection for gynecomastia.
2. The competent evidence of record demonstrates that the
Veteran has adhesions as result of his in-service RPLND.
3. From September 1, 2005 to January 14, 2007, the service-
connected scar, status-post RPLND, measured 25 centimeters in
length, was superficial and non-tender to palpation; it was
not productive of limitation of function of the abdomen.
4. From January 15, 2007, date of a VA examination report,
the service-connected scar, status-post RPLND has measured,
at most, 17 centimeters in length, is superficial and has
been productive of pain and tenderness to palpation; it has
not productive of limitation of function of the abdomen.
5. The predominant area of dysfunction resulting from an in-
service left orchiectomy and lymph node dissection is voiding
dysfunction, with a severity tantamount to requiring the
wearing of absorbent materials which must be changed two to
four times per day.
CONCLUSION OF LAW
1. The criteria for withdrawal of the Veteran's substantive
appeal on the issue of entitlement to service connection for
gynecomastia have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5)
(West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c)
(2008).
2. The criteria for the establishment of service connection
for adhesions have been met. 38 U.S.C.A. §§ 1110, 1131,
5103, 5103A 5107 (West 2002), 38 C.F.R. § 3.303 (2008).
3. From September 1, 2005 to January 14, 2007, an initial
compensable evaluation for the service-connected scar,
status-post RPLND is not warranted. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic
Codes 7801-7805 (2008).
4. From January 15, 2007, the Veteran's service-connected
scar, status-post RPLND warrants an initial 10 percent
disability rating, but no higher, by analogy to painful
scars. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002);
38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).
5. The criteria for the assignment of a 40 percent
disability rating, but no higher, resulting from post left
orchiectomy and lymph node dissection are approximated. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §
4.115a, Diagnostic Code 7523 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Withdrawal of Appeal-Entitlement to service connection for
gynecomastia
An appeal consists of a timely filed Notice of Disagreement
in writing, and after a Statement of the Case has been
furnished, a timely filed Substantive Appeal. 38 U.S.C.A. §
7105(a) (West 2002); 38 C.F.R. § 20.200 (2008).
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. Further, a Substantive Appeal
may be withdrawn in writing at any time before the Board
promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b)
(2008). Except for appeals withdrawn on the record at a
hearing, appeal withdrawals must be in writing. 38 C.F.R. §
20.204(b) (2008).
The record reflects that the Veteran perfected an appeal of a
September 2005 rating decision, wherein the RO, in part,
denied entitlement to service connection for gynecomastia.
Thereafter, the Veteran indicated at his March 2009 hearing
that he wished to withdraw his appeal with respect to these
claims. (See, T. at pg. 2). The Board finds that this
statement qualifies as a valid withdrawal of the issue of
entitlement to service connection for gynecomastia, and the
appeal is dismissed.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2008).
Proper VCAA notice must inform the claimant of any
information and evidence not of record that is necessary to
substantiate the claim. The Veteran should be informed as to
what portion of the information and evidence VA will seek to
provide, and what portion of such the claimant is expected to
provide. Proper notification must also invite the claimant to
provide any evidence in his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). See, also,
the United States Court of Appeals for Veterans Claims
(Court) decision in Pelegrini v. Principi (Pelegrini II), 18
Vet. App. 112, 120- 21 (2004).
In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that a comprehensive VCAA letter, as
opposed to a patchwork of other post-decisional documents
(e.g., statements or supplemental statements of the case),
was required. The Federal Circuit further held that such a
letter should be sent prior to the appealed rating decision
or, if sent after the rating decision, before a
readjudication of the appeal. Id.
In an August 2006 letter to the Veteran, subsequent to the
RO's initial adjudication of the claims for service
connection for adhesions and an initial compensable rating
for scar, status-post retroperitoneal lymph node removal in
September 2005, the Veteran was notified of the evidence
needed to substantiate these claims. The August 2006 letter
also satisfied the second and third elements of the duty to
notify by informing the Veteran that VA would try to obtain
medical records, employment records, or records held by other
Federal agencies, but that he was nevertheless responsible
for providing any necessary releases and enough information
about the records to enable VA to request them from the
person or agency that had them.
The Board notes that in Pelegrini II, the Court also held
that VCAA notice should be given before an initial AOJ
decision is issued on a claim. Pelegrini II, 18 Vet. App. at
119-120. While complete VCAA notice was provided after the
initial adjudication of the service connection and initial
rating claims discussed in the decision below, this timing
deficiency was remedied by the issuance of VCAA notice
followed by readjudication of the claims. Mayfield v.
Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were
readjudicated in a December 2006 statement of the case, and
January and October 2008 supplemental statement of the cases.
Therefore, any timing deficiency has been remedied. Id.
Regarding the Veteran's claim for service connection for
adhesions, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, including the degree of
disability and the effective date of an award. Dingess v.
Nicholson, 19 Vet. App. 473 (2006). By a June 2008 letter,
the Veteran was informed of the Dingess elements.
As this case involves, in part, an initial rating, as opposed
to an increased rating, the requirements of Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008) are not applicable.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159. There are relevant VA and
private records on file, including VA fee basis and
examination reports, dated in May 2005 and January 2007,
respectively. Copies of these reports have been associated
with the claims files. In addition, in March 2009, the
Veteran testified before the undersigned concerning the
issues decided herein.
The Board concludes that all available evidence has been
obtained and that there is sufficient medical evidence on
file on which to make a decision on the issues decided
herein.
The Veteran has been given ample opportunity to present
evidence and argument in support of his claims decided in the
decision below. The Board additionally finds that general
due process considerations have been complied with by VA, and
the Veteran has had a meaningful opportunity to participate
in the development of the claims. Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2008).
In this case, however, as there is no evidence that any
failure on the part of VA to further comply with VCAA
reasonably affects the outcome of this case, the Board finds
that any such omission is harmless. See Mayfield, supra, and
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Merits of the Claims Service Connection for Adhesions
The Veteran maintains that he currently has daily and
excruciating adhesions as a result of having undergone a
RPLND for testicular cancer during military service. (See,
VA Form 9, dated and signed by the Veteran in October 2008).
Thus, he maintains that service connection for this
disability is, therefore, warranted. Having carefully
considered the claim in light of the record and the
applicable law, the Board is of the opinion, and for reasons
that will be discussed in more detail in the analysis below,
that the evidence of record supports an award of service
connection for adhesions.
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of preexisting injury
suffered or disease contracted in the line of duty.
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2008).
In order to prevail on the issue of service connection, there
must be medical evidence of a (1) current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond
v West, 12 Vet. App. 341, 346 (1999).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however, remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. §
3.303(b) (2008). This rule does not mean that any
manifestations in service will permit service connection. To
show chronic disease in service there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time as distinguished from merely isolated
findings or a diagnosis including the word "chronic". When
the disease entity is established, there is no requirement of
evidentiary showing of continuity. When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b) (2008).
It is now well settled that in order to be considered for
service connection, a claimant must first have a disability.
See, e.g., Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353
(Fed. Cir. 1998) [service connection may not be granted
unless a current disability exists].
The Veteran maintains, in testimony and in written statements
submitted throughout the duration of the appeal, that he has
painful adhesions as a result of having undergone a RPLND for
testicular cancer during military service. He is competent
to report such trauma and symptomatology. Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Service treatment
records (STRs), in brief, show that in November 2003, the
Veteran underwent a RPLND for the treatment of testicular
caner.
In the evaluation of evidence, VA adjudicators may properly
consider internal inconsistency, facial plausibility and
consistency with other evidence submitted on behalf of the
veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995),
aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see
Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997);
(Holding that the Board has the "authority to discount the
weight and probative value of evidence in light of its
inherent characteristics in its relationship to other items
of evidence").
The Board finds the Veteran's testimony and statements as to
having painful adhesions ever since he underwent a RPLND
during service in November 2003 to be credible, in light of
all evidence of record.
The Veteran's reports of continuity of symptomatology have
been confirmed by VA fee basis and examination reports, dated
in May 2005 and January 2007, respectively. These reports
show that the Veteran complained of having sharp-stabbing-
right-sided abdominal pain ever since he underwent a RPLND
during military service. In January 2007, the Veteran stated
that the abdominal pains were very sharp and had caused him
to "double him up" from time to time. Adhesions, or any
other similar abdominal disorder, were not diagnosed during
either examination. (See, May 2005 and January 2007 VA fee
basis and examination reports, respectively).
A March 2009 medical evaluation and report, prepared by Craig
Bash, M. D., supports an award of service connection for
adhesions. After two physical evaluations of the appellant
and a review of claims files in March 2009, Dr. Bash reported
that the Veteran had undergone a RPLND in service and, since
that time, had experienced abdominal pain - a symptom also
noted since the Veteran underwent surgical procedures in
October and November 2003 while on active military duty; and
noted during a May 2005 VA examination which noted the
Veteran's complaints of a sharp stabbing pain while seated.
Dr. Bash concluded, "it is likely that the post-op infection
caused him to develop peritoneal adhesions." There is no
other opinion that contradicts Dr. Bash's March 2009 opinion.
The Board observes that the requirement of a "current
disability" is "satisfied when a claimant has a disability
at the time a claim for VA disability compensation is filed
or during the pendency of that claim" and "a claimant may
be granted service connection even though the disability
resolves prior to (VA's) adjudication of the claim." McClain
v. Nicholson, 21 Vet. App. 319 at 321 (2007). If a claimant
is diagnosed with a disability, and the severity of that
disorder lessens so that it no longer impairs the claimant, a
grant of service connection may be nonetheless appropriate if
it is otherwise found to be linked by competent evidence or
applicable presumption to some incident of military service.
The question of its severity is one of rating, not of service
connection. Ferenc v. Nicholson, 20 Vet. app. 58 (2006)
(Discussing the distinction in the terms "compensation,"
"rating," and "service connection" as although related,
each having a distinct meaning as specified by Congress).
As there is medical evidence on file that the Veteran's
currently has adhesions that are the result of having
undergone a RPLND during military service, service connection
is warranted for this disability. The RO will assign an
appropriate disability rating.
Initial Rating-Scar, Status-Post RPLND
The Veteran contends that because his service-connected scar,
status-post RPLND is painful to palpation, an initial 10
percent rating is, therefore, warranted. (See, VA Form 9,
dated and signed by the Veteran in October 2008). As will be
described in more detail below, the Board finds that the
evidence supports an assignment of an initial 10 percent
evaluation to the service-connected scar, status-post RPLND,
effective January 15, 2005--the date of a VA examination
report reflecting an increase in severity of this disability,
pursuant to Diagnostic Code (DC) 7804, the DC used to
evaluate superficial and painful scars. 38 C.F.R. § 4.118,
DC 7804.
By a September 2005 rating action, the RO awarded service
connection for scar status-post retroperitoneal lymph node
removal; an initial noncompensable evaluation was assigned,
September 1, 2005.
The RO has evaluated the service-connected scar, status-post
retroperitoneal lymph node removal as noncompensably
disabling under DC 7802, the DC used to evaluated scars,
other than the head, face or neck, that are superficial and
that do not cause limited motion. Under DC 7802, a maximum
10 percent rating is assigned where there is evidence that
the scar is located in an area or areas of 144 square inches
(929 square centimeters) or greater. 38 C.F.R. § 4.118, DC
7802.
Here, the evidence of record throughout the entire appeal
period has consistently showed that the service-connected
scar, status-post RPLND was "elevated" and did not cause
any limitation of motion of the abdomen, however, it was not
located in an area or areas of 114 square inches (929 square
centimeters). See, May 2005 and January 2007 VA fee basis
and examination reports, respectively, and March 2009 report,
prepared by C. B., M. D., reflecting that, at most, the
service-connected scar, status-post RPLND measured 25
centimeters in length (May 2005). Thus, an initial 10
percent evaluation under DC 7802 is not warranted at anytime
during the appeal period.
The Board has turned to other potentially relevant Diagnostic
Codes to evaluate the service-connected scar, status-post
RPLND. Under DC 7804, a maximum 10 percent rating is
assignable for a scar that is superficial and painful on
examination. According to a note following the diagnostic
code, a superficial scar is one not associated with
underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7804
(2008).
During a May 2005 VA fee basis examination, which was
conducted while the Veteran was still on active military
duty, the service-connected scar, status-post RPLND was
described as being "elevated," and measured 25 centimeters
long by one centimeter wide with disfigurement. The scar was
not, however, found to have been tender to palpation. (See,
May 2005 VA fee basis examination report).
The evidence changes on January 15, 2007, the date VA
examined the Veteran, in part, to determine the current
severity of the service-connected scar, status-post RPLND.
At that time, the Veteran's service-connected scar, status-
post RPLND was noted to have been tender to objective
palpation. The January 2007 VA examiner specifically
indicated that there was "some tenderness on palpation of
the abdominal scar." (See, January 2007 VA examination
report). The service-connected abdominal scar was also then
found to have been tender and painful to palpation during a
March 2009 private examination. (See, March 2009 report,
prepared and submitted by C. B., M. D.).
Therefore, the Board concludes that for the period beginning
January 15, 2007, the date of a VA examination report showing
that the service-connected scar, status-post RPLND was tender
to palpation, an initial 10 percent rating under Diagnostic
Code 7804 is, therefore, warranted.
As the service-connected scar, status-post RPLND has been
found to have been superficial (See, May 2005 and January
2007 VA fee basis and examination reports and March 2009
report of C. B., M. D., wherein the scar was described as
being "elevated," non-adherent to underlying tissue and
"raised superiorly," respectively) and not to have caused
any limited motion of the abdomen, consideration for a higher
evaluation under DC 7801, the Diagnostic Code used to
evaluate scars, other than the head, face, or neck, that are
deep or that cause limited motion, is not for application at
anytime during the appeal period. Even if the Board
considered evaluating the service-connected scar status-post
RPLND under DC 7801, an initial rating in excess of the
currently assigned 10 percent rating would not be warranted
because the scar, at most, measured 25 centimeters in length
during the appeal period (See, May 2005 VA fee basis
examination report), as opposed to an area or areas exceeding
12 square inches (77 square centimeters)--criteria necessary
for a 20 percent evaluation under DC 7801. See 38 C.F.R. §
4.118, Diagnostic Code 7801 (2008).
Further, and as noted in the foregoing analysis, as there is
no evidence of functional impairment of the abdomen due to
the service-connected scar status-post RPLND at anytime
during the appeal period, an initial rating in excess of the
currently assigned 10 percent is also not warranted under
Diagnostic Code 7805, the DC used to evaluate scars, based on
limitation of function of an affected part. See, 38 C.F.R. §
4.118, Diagnostic Code 7805 (2008).
Finally, Diagnostic Code 7800, which is used to evaluated
scars of the head, face, and neck, is inapplicable as the
Veteran's service-connected scar, status-post RPLND is
located in his abdomen area. In addition, consideration was
given Diagnostic Code 7803, scars, superficial, unstable. As
DC 7803 (scars, superficial, unstable) only provides for a
maximum schedular rating of 10 percent, which has been
awarded in the analysis above, this Diagnostic Code is not
for application. See, 38 C.F.R. § 4.118, Diagnostic Codes
7803 (2008).
Accordingly, in light of the foregoing, the Board concludes
that beginning on January 15, 2007, an initial disability
rating of 10 percent, but no higher, is warranted for the
Veteran's service-connected scar, status-post RPLND under
Diagnostic Code 7804.
As to possible extra-schedular consideration, the Veteran's
service-connected scar, status-post RPLND has not required
any periods of hospitalization. There is no evidence that
the Veteran's service-connected scar, status-post RPLND has
caused marked interference with employment beyond that
contemplated in the rating schedule. In view of the
foregoing, the Board finds that the evidence does not present
such an exceptional or unusual disability picture as to
render impractical the application of the regular schedular
standards so as to warrant the assignment of an
extraschedular rating under 38 C.F.R. 3.321(b)(1) (2008).
Therefore, further development in keeping with the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted.
Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
Initial Evaluation for Status-Post Left Orchiectomy and Lymph
Node Dissection
While serving on active military duty in October 2003, the
Veteran underwent a left orchiectomy for treatment of
prostate cancer. The RO has assigned a 20 percent disability
rating under a hyphenated rating of the provisions of 38
C.F.R. § 4.115b, Diagnostic Codes 7523 and 7528, (atrophy of
testis and malignant neoplasms of the genitourinary system,
respectively); see 38 C.F.R. § 4.27 (Hyphenated diagnostic
codes are used when a rating under one diagnostic code
requires use of an additional diagnostic code to identify the
basis for the evaluation assigned; the additional code is
shown after the hyphen).
The law provides that the Board must consider rating the
service-connected disability under a different Diagnostic
Code. The assignment of a particular Diagnostic Code is
"completely dependent on the facts of a particular case."
See 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 a Diagnostic Code by a VA adjudicator must be specifically
explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629
(1992).
With due application of the benefit-of-the-doubt doctrine,
the Board presently grants a 40 percent disability rating
effective June 19, 2006, under the provisions of 38 C.F.R. §
4.115a, pertaining to voiding dysfunction. Because such
action clearly does not inure to the prejudice of the
Veteran, no further notice is required. See Bernard v. Brown,
4 Vet. App. 384, 393-94 (1993) (Holding that when the Board
addresses in its decision a question that has not been
addressed by the RO, it must consider whether the appellant
has been given adequate notice to respond and, if not,
whether he has been prejudiced thereby.).
Diseases of the genitourinary system generally result in
disabilities related to renal or voiding dysfunctions,
infections, or a combination of these. The rating schedule
provides descriptions of various levels of disability in each
of these symptom areas. Where diagnostic codes refer the
decisionmaker to these specific areas of dysfunction, only
the predominant area of dysfunction shall be considered for
rating purposes. Since the areas of dysfunction do not cover
all symptoms resulting from genitourinary diseases, specific
diagnoses may include a description of symptoms assigned to
that diagnosis. See 38 C.F.R. § 4.115a.
Under Diagnostic Code 7528 as applied by the RO, a 100
percent rating is assigned for malignant neoplasms of the
genitourinary system. A Note following Diagnostic Code 7528
provides that following the cessation of surgical, X-ray,
antineoplastic chemotherapy, or other therapeutic procedure,
the rating of 100 percent shall continue with a mandatory VA
examination at the expiration of six months. Any change in
evaluation based upon that or any subsequent examination
shall be subject to the provisions of 38 C.F.R. § 3.105(e).
If there has been no local reoccurrence or metastasis, the
disability is to be rated on residuals, as voiding
dysfunction or renal dysfunction, whichever is predominant.
38 C.F.R. § 4.115b. A maximum rating of 60 percent is
assigned for a voiding dysfunction requiring the use of an
appliance or the wearing of absorbent materials that must be
changed more than 4 times per day.
In turn, 38 C.F.R. § 4.115a provides that continual urine
leakage, post surgical urinary diversion, urinary
incontinence, or stress incontinence requiring the wearing of
absorbent materials which must be changed less than two times
per day warrants a 20 percent rating, requiring the wearing
of absorbent materials which must be changed two to four
times per day warrants a 40 percent rating, and requiring the
use of an appliance or wearing of absorbent materials which
must be changed more than four times per day warrants a 60
percent rating. Urinary frequency with a daytime voiding
interval between two and three hours, or; awakening to void
two times per night, warrants a 10 percent rating, with a
daytime voiding interval between one and two hours, or;
awakening to void three to four times per night, warrants a
20 percent rating, and with daytime voiding interval less
than one hour, or; awakening to void five or more times per
night, warrants a 40 percent rating.
A November 2005 medical treatment record generated by an Air
Force medical treatment facility reported that the Veteran
had no urinary loss of control, no urinary hesitancy, and no
painful inability to urinate. In January 2006, the Veteran's
reported symptoms were unchanged - an Air Force medical care
provider reported that the Veteran was then reporting having
urinary incontinence preceded by a sudden urge, without post-
void dribbling.
However, the evidence suggests that in January 2006, the
Veteran reported that he was experiencing urinary
incontinence. On June 19, 2006 the Veteran again consulted an
Air Force medical clinic, and reported having post-void
dribbling. Urinary incontinence was again reported. In
December 2006, he reported urinary dribbling. Various other
Air Force medical records document "urinary symptoms,"
without more specific data. The Veteran underwent a VA
genitourinary examination in January 2007. He reported
experiencing stress incontinence, especially when coughing,
sneezing, lifting items, or exerting himself.
In his March 2009 opinion, Dr. Bash in relevant part reported
that the Veteran was experiencing bladder leakage, requiring
the changing of undergarments 3 times per day due to leakage.
The Veteran confirmed this frequency during the March 2009
hearing.
There can be no doubt that further medical inquiry could be
undertaken with a view towards development of the claim.
However, under the "benefit-of-the-doubt" rule, where there
exists "an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter," the veteran shall prevail upon
the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see
also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).
The critical point in this regard is that beginning on June
19, 2006 the Veteran began reporting urinary incontinence,
suggestive of the need to change his undergarments an
unspecified number of times daily, and he has presently
testified that its frequency is three times per day.
As noted, the Veteran is found to be credible, and he is
clearly competent to subjectively report the frequency of the
voiding dysfunction. The absence of a specific report of
relevant symptoms in medical examinations cannot by law be
construed as an absence of the symptoms themselves, unless an
examiner makes a specific inquiry. Wisch v. Brown, 8 Vet.
App. 139, 140 (1995) (Holding that the examiner must
specifically address the alleged disorder; the examiner's
silence is insufficient [to show the lack of
symptomatology]). Equally, the Veteran's description of
changing undergarments, instead of absorbent materials,
approximates findings for the assignment of the rating
presently granted.
The mandate to accord the benefit of the doubt is triggered
when the evidence has reached a stage of balance. In this
matter, the Board is of the opinion that this point has been
attained. Because a state of relative equipoise has been
reached in this case, the benefit of the doubt rule will
therefore be applied. See Alemany v. Brown, 9 Vet. App. 518,
519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993).
As noted, under 38 C.F.R. § 4.115a, only the predominant area
of dysfunction is to be considered for rating purposes.
Because beginning June 19, 2006, the predominant area of
genitourinary dysfunction was voiding, a 40 percent rating
but no higher will be granted effective that date.
ORDER
The appeal of the denial of entitlement to service connection
for gynecomastia is withdrawn.
Service connection for adhesions is granted.
From September 1, 2005 to January 14, 2007, an initial
compensable evaluation for the service-connected scar,
status-post RPLND, is denied.
From January 15, 2007, an initial 10 percent rating, but no
higher, for scar, status-post RPLD is granted, subject to the
criteria applicable to the payment of monetary benefits.
From September 1, 2005 to June 18, 2006, an initial rating
greater than 20 percent for status-post left orchiectomy and
lymph node dissection is denied.
From June 19, 2006, but no higher, a 40 percent rating for
voiding dysfunction, as residual of Status-Post Left
Orchiectomy and Lymph Node Dissection is granted.
