Citation Nr: 0639594 Decision Date: 12/19/06 Archive Date: 01/04/07 DOCKET NO. 04-18 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an initial compensable evaluation for erectile dysfunction. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from July 1968 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Winston-Salem, North Carolina, Regional Office (RO), which granted service connection for erectile dysfunction and assigned an initial rating of zero percent, effective August 14, 2000. This appeal was previously before the Board in April 2006, but was remanded for additional development. The requested development has been completed, and the appeal has been returned to the Board for further review. In a September 2006 letter to the Board, the veteran's representative stated that as the veteran had not responded to any of their contacts with him for more than three years, they wished to drop their power of attorney. However, the representative also continued to represent the veteran, as evidence by submission of a statement of accredited representative in appealed case (VA Form 646) at this time. Therefore, as the veteran's representative submitted argument on his behalf, and given the favorable nature of this decision, the Board finds that it can proceed with consideration of this appeal without harm to the veteran. FINDING OF FACT The veteran has near complete erectile dysfunction. CONCLUSION OF LAW The criteria for an initial 20 percent evaluation for erectile dysfunction have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.21, 4.31, 4.115b, Diagnostic Code 7599-7522 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented in part at 38 C.F.R § 3.159 (2006), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The veteran was provided with a VCAA letter in April 2006 that contains all the required information. The veteran's claim was then readjudicated by the RO in September 2006. All reported medical evidence has been obtained and necessary examinations conducted. Therefore, the Board finds that the duty to notify and duty to assist the veteran has been met in this case. Furthermore, given the favorable nature of this decision which awards the veteran the highest scheduler evaluation available for his disability, and the fact that there is no evidence that consideration of an extraschedular rating is warranted, any failures in the duty to notify or duty to assist is harmless error, as it has failed to result in any prejudice to the veteran. The March 2002 rating decision that granted service connection and a zero percent evaluation for erectile dysfunction also awarded special monthly compensation for loss of use of a creative organ. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all findings specified. Findings sufficiently characteristic to identify the disease and disability therefrom and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. This appeal involves the veteran's dissatisfaction with the initial rating for his disabilities assigned following the grant of service connection. The Court has found that there is a distinction between a veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the veteran disagrees with the initial rating, the entire evidentiary record from the time of the veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). The rating code does not have an entry solely for erectile dysfunction. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The veteran's disability is evaluated under 38 C.F.R. § 4.115b, Code 7522, which provides a 20 percent rating for penis deformity with loss of erectile function. This rating code does not contain provisions for a zero percent evaluation. 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. 38 C.F.R. § 4.31. The evidence includes a June 2000 VA examination, which found that the veteran was able to have intercourse about once a week. However, a subsequent VA examination conducted in September 2001 states that the veteran now had almost complete erectile dysfunction. This was not improved even with the use of Viagra. A January 2002 VA examination again noted that the veteran had nearly complete erectile dysfunction. In an April 2002 report from a private examiner, it was noted that the veteran had decreased erectile function and required the use of Viagra for a satisfactory erection. However, an August 2003 private medical report states that the veteran was finding only marginal relief from Viagra. The Board finds that entitlement to a 20 percent evaluation is warranted for the veteran's erectile dysfunction. The Board notes that the rating code under which the veteran is evaluated has only two requirements for a 20 percent evaluation. The first requirement is a deformity of the penis, and the second is erectile dysfunction. The evidence clearly shows that the veteran had erectile dysfunction. The use of Viagra apparently provides very little relief. There is no evidence that the veteran has deformity of the penis. However, it must be remembered that the veteran's disability is evaluated by analogy under this rating code. In evaluating disabilities by analogy, the Board is required to exercise caution in rating by analogy, to ensure that it is not acting in an arbitrary manner. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-3 (2006) (holding that Board's manner of applying DC 5003 in this case--by requiring a diagnosis of arthritis in order to grant a 10 percent disability rating where a diagnosis could not be had--was arbitrary and capricious because the analogy was, at best, illusory). Moreover, the veteran does not have to display every symptom listed under a rating code in order to receive an increased evaluation. If his symptoms more nearly resemble that of the next highest evaluation, then an increased rating is warranted. 38 C.F.R. § 4.21. As the veteran clearly has one of the two symptoms required for a compensable evaluation under 38 C.F.R. § 4.115b, Code 7522, and that symptom is the most relevant to function, a 20 percent evaluation is warranted even without evidence of deformity. The Board has considered entitlement to an evaluation in excess of 20 percent for the veteran's erectile dysfunction, but 20 percent is the highest evaluation available under the rating code. An evaluation under a different rating code has been considered, but there are no rating codes that are more appropriate for evaluation of the veteran's disability. As the maximum scheduler evaluation is in effect, no additional discussion is necessary. Johnston v. Brown, 10 Vet. App. 80, 85 (1995). The Board has also considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b). There is no evidence that the veteran's service connected disabilities present such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The veteran has not alleged that such factors are present with regard to his erectile dysfunction. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial 20 percent evaluation for erectile dysfunction is granted, effective August 14, 2000. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs