Citation Nr: 18154181
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-46 959
DATE:	November 29, 2018
ORDER
Entitlement to an effective date earlier than May 7, 2010 for the grant of service connection for prostate cancer is denied.
Entitlement to an effective date earlier than May 7, 2010 for the grant of service connection for erectile dysfunction is denied.
Entitlement to an effective date earlier than May 7, 2010 for the grant of special monthly compensation (SMC) for loss of use of a creative organ is denied.
Entitlement to an initial rating more than 20 percent for residuals prostate cancer for the period prior to June 7, 2012 for substitution purposes is denied.
Entitlement to an initial 60 percent rating for residuals prostate cancer for the period from June 7, 2012 to May 26, 2014 for substitution purposes is granted.
Entitlement to an initial rating in excess of 60 percent for residuals prostate cancer for the period since June 7, 2012 for substitution purposes is denied.
Entitlement to an initial compensable evaluation for erectile dysfunction for substitution purposes is denied.
REMANDED
Entitlement to an effective date earlier than May 7, 2010 for the grant of a total disability rating based upon individual unemployability (TDIU) for substitution purposes is remanded.
Entitlement to an effective date earlier than May 7, 2010, for the grant of basic eligibility to Dependents’ Educational Assistance (DEA) benefits for substitution purposes is remanded.
FINDINGS OF FACT
1. On May 7, 2010, the VA received the Veteran’s formal application for benefits for service connection for prostate cancer and erectile dysfunction disabilities.
2. A March 2013 rating decision granted service connection for prostate cancer residuals, granted service connection for erectile dysfunction and granted SMC for loss of use of a creative organ all effective May 7, 2010.  The effective dates were the date of the claims for service connection.
3.  There is not clear evidence of any administrative irregularity by the agency of original jurisdiction, and VA received no communication from the Veteran, or any authorized representative, that constitutes a formal claim for prostate cancer or erectile dysfunction disabilities prior to May 7, 2010.
4. For the period prior to June 7, 2012, the residuals of the Veteran’s prostate cancer had not been manifested by urinary leakage requiring the use of wearing of absorbent materials, which must be changed 2 to 4 times per day; daytime voiding interval of less than one hour, awakening to void five or more times per night, or urinary retention requiring intermittent or continuous catheterization.
5. For the period since June 7, 2012, the Veteran’s prostate cancer residuals had been manifested requiring the wearing of absorbent materials that must be changed more than 4 times per day, nocturia more than 5 times per night and frequent daytime voiding.
6.  The Veteran’s service-connected erectile dysfunction had not manifested as any penile deformity. 
CONCLUSIONS OF LAW
1. The criteria for an effective date, earlier than May 7, 2010, for the grant of service connection for prostate cancer are not met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2017).
2.  The criteria for an effective date, earlier than May 7, 2010, for the grant of service connection for erectile dysfunction are not met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2017).
3.  The criteria for an effective date, earlier than May 7, 2010, for the grant of SMC for loss of use of a creative organ are not met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2017).
4. For the period prior to June 7, 2012, the criteria for an initial rating in excess of 20 percent for prostate cancer residuals for substitution purposes are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.7, 4.40, 4.115b, Diagnostic Code 7528 (2017).
5. For the period since June 7, 2012, the criteria for an initial 60 percent rating for prostate cancer residuals for substitution purposes are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.7, 4.40, 4.115b, Diagnostic Code 7528 (2017).
6. For the period since June 7, 2012, the criteria for an initial rating in excess of 60 percent for prostate cancer residuals for substitution purposes are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.7, 4.40, 4.115b, Diagnostic Code 7528 (2017).
7.  The criteria for an initial compensable evaluation for erectile dysfunction for substitution purposes have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1968 to August 1970 and from December 1973 to May 1974. He died in May 2017.  The appellant is the Veteran’s surviving spouse.
In May 2017, the appellant submitted a VA 21-0847 request to be substituted as the appellant.  In a July 2017 administrative decision, the RO determined that the appellant meets the basic eligibility for substitution in this appeal.  
The appellant’s prior representative, a private attorney, withdrew representation through a written statement received by VA in October 2018.  The record does not contain any current executed form (either a VA Form 21-22 or a VA Form 21-22a) appointing a valid representative in these matters.  The Board proceeds with the understanding that the appellant is appearing pro se.
As noted in a prior November 2015 Board decision which addressed issues not before the Board, the issue of entitlement to service connection for left ear hearing loss for substitution purposes has been raised by the record but not adjudicated by the Agency of Original Jurisdiction (AOJ).  As a result, the Board does not have jurisdiction over this issue and the intertwined issue of entitlement to service connection for tinnitus for substitution purposes and they are again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (6). 
					Substitution
Initially, the Board notes that the issues before the Board here have been recharacterized as for substitution purposes.  Although it may appear that, because the appellant’s claims are now before the Board, it does not make a difference whether they are adjudicated as accrued benefits claims or as requests for substitution.  There is, however, a significant difference.  When adjudicating the former, only the evidence of record at the time of the Veteran’s death may be considered as the basis for a determination on the merits of a claim.  By contrast, when a properly qualified substitute claimant “continues the pending claim in the footsteps of the veteran” after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim. 
Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence.  Thus, it is to the appellant’s advantage to have her claims adjudicated as a substitute claimant pursuant to 38 U.S.C. § 5121A, rather than as they were originally adjudicated.
In other words, because the appellant is a substitute claimant in this case, the Board will consider all evidence submitted in this case, to include evidence submitted both prior to and after the Veteran’s death.


Effective Date
Laws and Regulations
Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
The terms “claim” and “application” mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).  Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim.  38 C.F.R. § 3.155(a).
VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157.  Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b).
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.
Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 
Factual Background and Analysis
The earliest document that can be construed as a claim for service connection for residuals, prostate cancer and erectile dysfunction is the formal application for benefits, VA Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526) which is date-stamped as having been received by the RO on May 7, 2010. 
The March 2013 rating decision granted service connection for prostate cancer residuals at an initial 10 percent disability and for erectile dysfunction at an initial noncompensable rating, both effective May 7, 2010, which was the date that the claims were received.
The March 2013 rating decision also granted SMC for loss of use of creative organ that was associated with erectile dysfunction.  The SMC for loss of use was effective May 7, 2010 which is the same date that service connection has been established for erectile dysfunction.
Based on the evidence, the Board finds that an effective date earlier than May 7, 2010 for service-connected prostate cancer residuals, erectile dysfunction and SMC for loss of use of a creative organ is not warranted as the claims file does not reflect that any communication filed prior to that date could be construed as a formal or informal claim for these specific benefits.
As the Veteran’s claims for service connection for prostate cancer residuals and erectile dysfunction were not received within one year of his May 1974 separation from service, the effective possible effective date is the date of receipt of the Veteran’s claim, May 7, 2010.  38 C.F.R. § 3.400(b) (2) (i).
Accordingly, the Board finds that there otherwise is no basis for the assignment of an effective date earlier than May 7, 2010, for the award of entitlement to service connection for prostate cancer residuals and erectile dysfunction and entitlement to SMC for loss of use of a creative organ.  The claims file does not reflect that any communication filed prior to that date could be construed as a formal or informal claim for these specific benefits.
Under these circumstances, the claims for an earlier effective date must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against assignment of an effective date earlier than May 7, 2010, for the award of entitlement to service connection for prostate cancer residuals and erectile dysfunction and entitlement to SMC for loss of use of a creative organ, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).
Increased Ratings
Laws and Regulations
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017). 
The Veteran’s entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2017).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2017).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).
Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017).
In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of his prostate cancer and erectile dysfunction.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal.
The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.
Factual Background
The Veteran underwent a VA examination in August 2010.  The examiner noted that the residuals of his prostate cancer included erectile dysfunction that was treated with oral medication that did not help.  He had residuals urinary urgency/hesitancy and had difficulty stopping the stream.  He had not required any absorbent padding.  He had the urinary symptoms of urgency, hesitancy/difficulty starting stream, a weak or intermittent stream and straining to urinate.  He had a daytime voiding interval of going every 2 to 3 hours and voided 3 times per night.  There was urinary leakage as he had stress incontinence.  There was no history of urinary tract infections (UTIs), urinary retention, urinary tract stones, renal dysfunction or renal failure, acute nephritis, hydronephrosis or cardiovascular symptoms.  He had erectile dysfunction as a residual of his prostate cancer and vaginal penetration was not possible.  He had a normal penis examination.  The examiner found that the Veteran’s disability did not have any effects on his activities of daily living.  
A June 2012 VA urology treatment note reported that the Veteran was having urinary problems as he had nocturia 6 to 7 times per night and some burning on urination at times.  There was no gross hematuria but his stream was slow most of the time.  He thought he emptied but he had hesitancy for 2 to 3 minutes.  
In a May 2014 correspondence, the Veteran reported that he was incontinent as he could not control his urine.  He reported that it was difficult to make his urine start and once it started he had “no control over it”.  He had leakage as a result and had to change 6 to 7 times a day.  He walked around with paper towels in his pants to try to absorb the continuous leak.  He noted that this had been an ongoing problem since his treatment for his prostate cancer.  
A May 2014 VA urology treatment note reported that the Veteran using paper towels because of leakage.  He had nocturia 6 to 7 times per night as well as some burning at urination at times.  He had occasional hematuria and his stream was slow most of the time.  He felt as though he was not emptying and he had dribbling at the end of urination.  He had hesitancy for 2 to 3 minutes.  His penis and testes were normal. The physician noted that the Veteran requested incontinence pads be mailed to him as he had urinary incontinence.

The Veteran underwent a VA examination in February 2015.  The examiner noted that a May 2014 VA urology note indicated that the Veteran’s stream was slow most of the time and he felt as though he was not emptying.  He was also dribbling at the end of urination and had hesitancy of 2 to 3 minutes.  On examination both his penis and testicles were normal.  The Veteran had voiding dysfunction which required absorbent material that must be changed more than 4 times per day.  The voiding dysfunction did not require the use of an appliance.  The voiding dysfunction caused increased urinary frequency as he had a daytime voiding interval between 1 to 2 hours as well as nighttime awakening to void 5 or more times.  The voiding symptoms caused signs or symptoms of obstructed voiding as there was marked hesitancy, a markedly slow stream, a markedly weak stream, and a markedly decreased force of stream.  There were no other obstructive symptoms.  He did not have a history of UTIs or kidney infections.  He had erectile dysfunction but did not have renal dysfunction.  His prostate cancer residuals did not impact his ability to work.  The examiner described the Veteran’s residuals from prostate cancer as severe.
1. Prostate Cancer
A March 2013 rating decision granted service connection for prostate cancer residuals at an initial 10 percent disability rating, effective May 7, 2010 under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. 
An August 2016 rating decision found that clear and unmistakable error (CUE) was found in the evaluation of the service-connected prostate cancer residuals and as a result assigned an initial 20 percent evaluation for the period from May 7, 2010 to June 6, 2012; an initial 40 percent evaluation for the period from June 7, 2012 to May 26, 2014; and an initial 60 percent evaluation for the period from May 27, 2014.


Regardless of the RO’s actions, the issues for each time period remain before the Board because the higher initial ratings were not a complete grant of the maximum benefits available.  See AB v. Brown, 6 Vet. App. 35 (1993).
Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and 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) (2015).  If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b.  
Pursuant to the provisions of Diagnostic Code 7527, postoperative residuals of prostate gland injuries are evaluated under voiding dysfunction, renal dysfunction or urinary tract infection, whichever is predominant.  38 C.F.R. § 4.115b.
In this case, the appellant has not alleged, and the evidence does not otherwise show, that the service-connected residuals of prostate cancer are associated with, or have been accompanied by, a renal dysfunction or urinary tract infection.  Accordingly, the prostate cancer disability is evaluated under voiding dysfunction.  As such, the Veteran’s residuals of prostate cancer have been rated under 38 C.F.R. § 4.115a for voiding dysfunction.
Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding.  Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence.  A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day.  When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted.  When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted.  38 C.F.R. § 4.115a. 
For urinary frequency, a 10 percent evaluation is warranted for daytime voiding interval between two and three hours or awakening to void two times per night.  A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night warrants.  A 40 percent rating is warranted for daytime voiding interval less than one hour or; awakening to void five or more times per night.  Id.
Obstructed voiding includes ratings ranging from noncompensable to 30 percent.  A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year.  A 10 percent rating contemplates 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 cubic centimeters (cc’s); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc’s per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months.  A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization.  Id.
Period prior to June 7, 2012
As noted above, for the period prior to June 7, 2012, the Veteran has an initial 20 percent disability evaluation for his residuals of prostate cancer under Diagnostic Code 7528.
After reviewing evidence of record as a whole, the Board finds that the assignment of an initial disability rating greater than 20 percent for the period prior to June 7, 2012 for the Veteran’s service-connected residuals of prostate cancer on a substitution basis is not warranted.

In order to warrant a rating in excess of 20 percent under Diagnostic Code 7528, it must be demonstrated that the Veteran required the use of an appliance, the wearing of absorbent materials that must be changed more than 4 times per day, or the wearing of absorbent materials that must be changed 2 to 4 times per day in regard to his urinary dysfunction or urinary retention requiring intermittent or continuous catheterization.  
In this case, the evidence shows for the period prior to June 7, 2012 that the Veteran’s residuals of prostate cancer had been manifested by urgency, hesitancy/difficulty starting stream, a weak or intermittent stream and straining to urinate.  The August 2010 VA examination also noted that the Veteran had a daytime voiding interval of going every 2 to 3 hours, voided 3 times per night but did not require any absorbent padding.  These findings are consistent with a 20 percent rating under Diagnostic Code 7528.
Accordingly, a rating in excess of 20 percent for residuals of prostate cancer under Diagnostic Code 7528 is not warranted for the period prior to June 7, 2012 as the evidence shows that the residuals of prostate cancer were not manifested by urinary leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day; daytime voiding interval of less than one hour; awakening to void five or more times per night; or urinary retention requiring intermittent or continuous catheterization.  
The Board notes that in an August 2014 correspondence, the Veteran noted that he had to use paper towels for absorption purposes to contain the urinary leakage and that this had been an ongoing problem since his treatment for his prostate cancer.  However, the Board notes that the August 2010 VA examiner again specifically indicated that the Veteran had not required any absorbent padding.  
As a result, a higher initial rating for this period based on the wearing of absorbent materials is not warranted. 38 C.F.R. § 4.115a.
Thus, the weight of the evidence is against the grant of an initial disability rating in excess of 20 percent for the period prior to June 7, 2012 for substitution purposes.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2017).  
Period Since June 7, 2012
As noted above, the Veteran currently has an initial 40 percent evaluation for the period from June 7, 2012 to May 26, 2014.
When affording the appellant the benefit of the doubt, the Board finds that an initial 60 percent rating for substitution purposes for residuals of prostate cancer is warranted for the period from June 7, 2012.
As noted above, a June 2012 VA urology treatment note reported that the Veteran was having urinary problems as he had nocturia 6 to 7 times per night and some burning on urination at times. Additionally, in a May 2014 correspondence, the Veteran reported that he had leakage as a result and had to change 6 to 7 times a day while he also walked around with paper towels in his pants to try to absorb the continuous leak.  On his May 2014 correspondence, the Veteran noted that this had been an ongoing problem since his treatment for his prostate cancer.  
As a result, the Board finds that for the period since June 7, 2012, an initial 60 percent disability rating is warranted for substitution purposes for residuals of prostate cancer as the evidence demonstrates the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a.
However, the Board finds that an initial rating in excess of 60 percent for the period since June 7, 2012 for the substitution purposes is not warranted.
As noted above, for the period since June 7, 2012 the Veteran’s residuals of prostate cancer are now currently rated at 60 percent based on voiding dysfunction. Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a.  A 60 percent rating is warranted for urine leakage when there is use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. This is the highest available rating for residuals of prostate cancer based on voiding dysfunction. Id. As the Veteran has already been assigned the highest possible rating based on voiding dysfunction, the Board finds that an initial rating in excess of 60 percent based on voiding dysfunction is not warranted.
No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. Notably, the Veteran characterized his residuals of prostate cancer as a voiding dysfunction, as have the VA medical examiners and VA treatment records.  Accordingly, the Veteran’s voiding dysfunction is the predominant dysfunction, and any residuals of prostate cancer that were present must be rated according to the rating criteria for voiding dysfunctions.  38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. A rating higher than 60 percent is not available under the evaluations for voiding dysfunctions.  38 C.F.R. § 4.115a, Voiding Dysfunctions. 
Further, even assuming voiding dysfunction is not the predominant dysfunction, there is no competent lay or medical evidence that the Veteran has renal dysfunction characterized by any of the symptomatology corresponding with 80 percent or 100 percent ratings for renal failure.  See 38 C.F.R. § 4.115a, Renal Dysfunction.  As such, the preponderance of the evidence is against a higher rating under the rating criteria for renal dysfunction.  
Finally, there is no competent lay or medical evidence showing that the Veteran has active neoplasms of the genitourinary system. As such, a 100 percent rating for malignant neoplasms of the genitourinary system under Diagnostic Code 7528 is not warranted.
All potentially applicable diagnostic codes have been considered, and there is no basis on which to assign an evaluation initial evaluation in excess of 60 percent for the Veteran’s residuals of prostate cancer for the period since June 7, 2012 for substitution purposes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 
2. Erectile Dysfunction
In this case, the RO granted service connection for erectile dysfunction and assigned an initial noncompensable evaluation, effective May 7, 2010 under Diagnostic Code 7522 for penis, deformity, with loss of erectile power. 
In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31 (2017).
Under Diagnostic Code 7522, in order for the Veteran to receive a higher 20 percent rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required.  38 C.F.R. § 4.115b.  A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350 (a) (2017).  In this case, the Veteran is in receipt of SMC for loss of use of a creative organ.
The VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under Diagnostic Code 7522: (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. See M21-1, Part III, Subpart iv, Chapter 4, Section I, Paragraph 3.b. (Updated August 17, 2016).
Analysis
The Board finds that the preponderance of the evidence is against the assignment of an initial compensable evaluation under Diagnostic Code 7522.  
Notably, the VA medical evidence shows loss of erectile power.  However, in order to obtain a compensable rating under Diagnostic Code 7522, deformity of the penis must also be demonstrated.  Notably, both the August 2010 and February 2015 VA examinations reported a normal anatomy with no penile deformity or abnormality.  Therefore, the evidence does not show complaint, treatment, or findings of penile deformity. 
While the medical records as reviewed above clearly indicate that the Veteran is impotent, none of the medical evidence indicates that the Veteran’s penis is actually deformed.  Additionally, although the Veteran indicated that he could not have intercourse, he had never claimed that he had an actual penile deformity in addition to the erectile dysfunction.
Furthermore, with respect to VA benefits, as noted above, SMC for loss of use of a creative organ was granted to compensate the Veteran for his erectile dysfunction.
For the reasons stated above, the preponderance of the evidence is against an initial compensable rating for the Veteran’s erectile dysfunction for substitution purposes.  Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied.  38 U.S.C. §5107 (b); 38 C.F.R. §§ 3.102, 4.3.
REASONS FOR REMAND
In an August 2016 rating decision, the RO granted entitlement to a TDIU and entitlement to DEA benefits for substitution purposes both effective June 7, 2012.  In September 2016, the Veteran filed a notice of disagreement (NOD) as to the August 2016 rating decision.  However, it appears that no subsequent statement of the case was ever issued.  


The Board notes that an October 2018 rating decision granted an earlier effective date of May 7, 2010 for the grants of a TDIU and DEA benefits for substitution purposes. Regardless of the RO’s actions, the issue of entitlement to an effective dates earlier than May 7, 2010 for the grants of a TDIU and DEA benefits for substitution purposes remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993).
Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issues of entitlement to an earlier effective date of May 7, 2010 for the grants of a TDIU and DEA benefits for substitution purposes remain pending in appellate status and require further action.  See 38 U.S.C. § 7105; 38 C.F.R. § 19.26.  In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the appellant files a timely substantive appeal.  The Board’s actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. 
The matters are REMANDED for the following action:
The RO should issue a statement of the case to the appellant addressing the matters of entitlement to an earlier effective date of May 7, 2010 for the grants of a TDIU and DEA benefits for substitution purposes, including citation to all relevant law and regulation pertinent to these claims.  Then, only if the appeal is timely perfected, these issues are to be returned to the 
 
Board for further appellate consideration, if otherwise in order.

 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	James A. DeFrank, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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