Citation Nr: 0213542 Decision Date: 10/03/02 Archive Date: 10/10/02 DOCKET NO. 00-10 983 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for a skin disorder manifested by xerosis. 3. Entitlement to a compensable rating for service-connected erectile dysfunction. ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from October 1978 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) from a February 2000 RO decision that denied service connection for depression and for a skin disorder manifested by xerosis, and granted service connection and a 0 percent rating for erectile dysfunction (for which the veteran seeks a higher rating). FINDINGS OF FACT 1. The veteran's current depression began during his active duty. 2. The veteran's current skin disorder manifested by xerosis began during his active duty. 3. Since the effective date for service connection, the veteran's service-connected erectile dysfunction has been manifested by difficulty in maintaining erections, but without any deformity. CONCLUSIONS OF LAW 1. Depression was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (2001). 2. A skin disorder manifested by xerosis was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (2001). 3. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.350, 4.31, 4.115b, Diagnostic Code 7522 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The veteran served on active duty from October 1978 to October 1998. Service medical records show that he was evaluated for erectile dysfunction in January 1998 after several months inability to maintain an erection; he also reported an increase in stress due to concern over this problem. Medical records for the remainder of service note periodic treatment for erectile dysfunction. In May 1998, when the veteran was seen for a primary complaint of erectile dysfunction, it was also noted he had ichthyosis (a skin condition manifested in part by dryness) of the legs and hips, for which he was prescribed Carmol cream. On a general medical examination in August 1998, the psychiatric system and skin were noted to be normal on clinical evaluation, and he denied any pertinent symptoms on the associated medical history report. The veteran has submitted a photocopy of a prescription label (from a naval clinical pharmacy), apparently from 1999, indicating refills of the May 1998 prescription for Carmol cream for rough dry skin. Post-service medical records show that when the veteran was seen at a VA clinic in May 1999, he gave a history of feeling depressed, and reported the condition of his wife (who had cancer and was also depressed) had had an impact on sexual functioning. An October 1999 VA progress note indicated that erectile dysfunction was contributing to depression and that erectile dysfunction was perhaps secondary to depressive illness. According to a November 1999 VA mental health consultation report, the veteran was experiencing several stressors, including retirement after a lengthy period of active service, work-related problems, his wife's health and cancer treatment, and depression ever since first experiencing erectile dysfunction. He also reported having had 3 bouts of depression lasting more than 2 weeks in the past 3 years. Impressions included recurrent major depressive disorder. In November 1999, the veteran claimed service connection for depression, and for a dry skin condition that particularly affected his legs. On VA examination in November 1999, the veteran complained of dry skin and itching; he was using lotions without relief. He had dry skin on his legs and back, and the diagnosis was xerosis. On genitourinary examination, he reported achieving partial erection which he would lose before vaginal penetration; he reported that when he was able to have intercourse with a semi-flaccid penis, he ejaculated normally. He had taken Viagra only once because of fears of cardiac side effects. He had no difficulty voiding; he had some urgency but no hematuria or nocturia. Examination of the external genitalia was normal. The diagnosis was erectile dysfunction (impotence), etiology undetermined. A number of later medical records show treatement for depression. In February 2000, the RO awarded service connection for erectile dysfunction with a noncompensable rating, effective November 1, 1998. It also denied service connection for depression and for a skin condition manifested by xerosis. In March 2000 statements, the veteran and his wife suggested that he had depression with the erectile problems in service, although he did not seek psychiatric help until later. The veteran said he had dry skin for many years, beginning in service. In later statements the veteran argued that his depression was present in service along with his erectile dysfunction, or that the erectile dysfuntion led to the depression. April 2000 VA treatment records show that depression treatment was being given in connection with erectile disorder; it was reportedly very likely that both physical and psychosocial factors were contributing to and associated with his current sexual functioning. Medical records from 2000 to 2002 note such diagnoses as erectile dysfunction, recurrent major depression, and depressive disorder with psychotic features. In April 2002, he reported fullness in the testicles/perineum, and the examination revealed no testicular swelling, and a normal prostate; he was to be given a trial of Viagra. II. Analysis Through discussions in correspondence, rating decisions, the statement of the case, and the supplemental statements of the case, the veteran has been notified of the evidence needed to substantiate his claims and about who would bear the responsibility for obtaining such evidence. The VA has obtained pertinent identified medical records and has performed all necessary examinations. The Board finds that the notice and duty to assist provisions of the law have been satisfied. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Service connection Service connection will be granted for disability resulting from disease or injury which was incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including psychoses, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). 1. Depression The veteran contends, in part, that he is now suffering from depression which was present in service along with his erectile dysfunction. Service medical records from the veteran's 1978-1998 active duty do not refer to depression, although the veteran was noted to have the erectile dysfunction which is now service- connected. One 1998 service medical record pertaining to erectile dysfunction notes an increase in stress due to sexual dysfunction problems. The veteran's active duty ended in October 1998. Within a year thereafter, in May 1999, he began relating a history of depression. Later medical records show diagnoses of depression, at times with psychotic features. Post-service statements by the veteran and his wife contain credible accounts of his depression being present along with the erectile problems in service, even if he did not seek psychiatric help until after service. Although depression was not diagnosed until shortly after service, the Board finds that all the evidence, including that pertinent to service, indicates depression began during active duty. 38 C.F.R. § 3.303(d). Depression was incurred in service, and service connection is warranted. In granting this benefit, the Board has given the veteran the benefit of the doubt under 38 U.S.C.A. § 5107(b). 2. Skin disorder manifested by xerosis The veteran is seeking service connection for a skin disorder manifested in part by dry skin (i.e., xerosis). Service medical records, near the end of the veteran's service, note this skin condition, for which medication was prescribed. The disorder was also noted on the post-service VA examination. There is sufficient continuity of symptomatology to trace the current condition to service onset. 38 C.F.R. § 3.303(b). The Board finds that a skin disorder manifested by xerosis was incurred in service, and service connection is warranted. In granting this benefit, the Board has given the veteran the benefit of the doubt under 38 U.S.C.A. § 5107(b). B. Higher rating for service-connected erectile dysfunction A noncompensable rating has been assigned for erectile dysfunction since November 1, 1998, and the veteran is seeking a higher rating. This is an initial rating case, on the grant of service connection, and thus different percentage ratings for the disability may be assigned for different periods of time, since the effective date of service connection, based on the facts found (so-called "staged ratings"). Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. There is not a listed disability rating for erectile dysfunction, and this condition is therefore rated by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7522. Under Code 7522, a deformed penis with loss of erectile power is entitled to a 20 percent rating. When the requirements for a compensable rating under this code are not met, a 0 percent rating is assigned. 38 C.F.R. § 4.31. None of the in-service or post-service medical records show any penile deformity. Indeed, physical examination on VA examination in November 1999 found normal external genitalia. Absent evidence of penile deformity, even though there is some erectile dysfunction, a compensable rating is not warranted under Code 7522. A note to Code 7522 indicates that the disability is also to be reviewed for possible entitlement to special monthly compensation under 38 C.F.R. § 3.350 for loss of use of a creative organ. However, there is no showing that he has lost use of a creative organ as defined in this regulation. Since the effective date of service connection, there have been no identifiable periods of time during which the condition has been compensable, and thus higher "staged ratings" are not in order. See Fenderson, supra. As the preponderance of the evidence is against the veteran's claim for a compensable rating for erectile dysfunction, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for depression is granted. Service connection for a skin disorder manifested by xerosis is granted. A compensable rating for erectile dysfunction is denied. L.W. TOBIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.