Citation Nr: 0806634 Decision Date: 02/27/08 Archive Date: 03/06/08 DOCKET NO. 06-02 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for hypogonadism. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from July 2001 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted, in pertinent part, the veteran's claim of service connection for hypogonadism, assigning a zero percent rating effective August 22, 2004 (the day after the date of the veteran's discharge from active service), granted entitlement to special monthly compensation based on the loss of use of a creative organ effective August 22, 2004, and denied the veteran's claim of service connection for major depressive disorder (which the RO characterized as generalized anxiety disorder with major depressive disorder and obsessive compulsive disorder). The veteran disagreed with this decision in October 2005, seeking an initial compensable rating for service-connected hypogonadism and service connection for major depressive disorder. In a December 2005 rating decision, the RO granted service connection for major depressive disorder and assigned a 50 percent rating effective August 22, 2004. This decision was issued to the veteran in January 2006. There is no subsequent correspondence from the veteran expressing disagreement with the rating or effective date assigned. Accordingly an issue relating to major depressive disorder is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim for an initial compensable rating for hypogonadism has been obtained. 2. The veteran's service-connected hypogonadism is not manifested by a penis deformity with loss of erectile power. CONCLUSION OF LAW The criteria for an initial compensable rating for hypogonadism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115b, Diagnostic Code 7799-7522 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The claim on appeal is a "downstream" element of the RO's grant of service connection for hypogonadism in the currently appealed rating decision issued in March 2005. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). In a letter issued in September 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his claim for service connection for hypogonadism, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his hypogonadism during service, and noted other types of evidence the veteran could submit in support of his claim. In addition, the veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also provided the appellant with notice of the Dingess requirements in March 2006. Although complete content- complying notice was provided after the March 2005 RO decision that is the subject of the current appeal, the claimant has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the veteran's higher initial rating claim is being denied herein, such matters are moot. In any event, however, the March 2006 letter included applicable notice of the Dingess requirements. In Dingess, the United States Court of Appeals for Veterans Claims (Veterans Court) held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board notes that the Veterans Court, in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008), clarified VA's notice obligations in increased rating claims. The instant appeal originates, however, from the grant of service connection for the disorder at issue. Consequently, Vazquez- Flores is inapplicable. Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that he is entitled to an initial compensable evaluation for his service-connected hypogonadism. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. November 19, 2007). The veteran's service-connected hypogonadism is currently evaluated as zero percent disabling by analogy to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7799-7520. See 38 C.F.R. § 4.115b, DC 7799-7520 (2007). Under DC 7520, a 20 percent evaluation is available for a penis deformity with loss of erectile power. Id. A footnote to DC 7520 indicates that claims for penis deformities should be reviewed for entitlement to special monthly compensation under 38 C.F.R. § 3.350. See 38 C.F.R. § 3.350 (2007). As noted in the Introduction, the veteran has been receiving special monthly compensation for loss of use of a creative organ since August 22, 2004. A review of the veteran's service medical records indicates that, at the veteran's enlistment physical examination in July 2001, clinical evaluation of the veteran's endocrine system was completely normal. The veteran reported that he was in good health at his separation physical examination in May 2004. Clinical evaluation of the veteran's endocrine and genitourinary systems was completely normal. Laboratory results obtained in June 2004 show that the veteran's testosterone level was 102.8 with a normal range between 280-800. On outpatient treatment in July 2004, the veteran complained of fatigue, sexual dysfunction, and decreased libido. Laboratory results showed a testosterone level of 90.55. The in-service examiner stated that there was a question of idiopathic secondary hypogonadism and secondary hypothyroidism (i.e., hypopituitarism). The diagnosis, contained in a letter to another in-service examiner, was idiopathic central hypogonadism. The veteran received a medical discharge from active service in August 2004 based on the findings of a Physical Evaluation Board in August 2004 that he was disabled by generalized anxiety disorder and major depressive disorder that were not incurred in the line of duty and existed prior to service. VA clinical records show that, on outpatient treatment in October 2004, the veteran complained of decreased libido and fatigue. Physical examination showed testicular volume within normal limits with no induration or palpable nodules and normal external genitalia. The impression was a history of hypogonadotropic hypogonadism. On VA outpatient treatment in December 2004, the veteran complained of fatigue, decreased sex drive, and erectile dysfunction. The veteran's testosterone level was 630. The assessment included idiopathic central hypogonadism. On VA outpatient treatment in January 2005, the veteran reported that he was able to carry out sexual activity. He also reported significant improvement in stamina. The assessment was a history of hypogonadotropic hypogonadism. On private outpatient treatment in November 2005, it was noted that the veteran had a diagnosis of male hypogonadism that had been stable and non-progressive since being diagnosed 1 1/2 years earlier. The assessment was male hypogonadism. In response to a request from the RO, Austin Regional Clinic notified VA in March 2006 that no records were available for the veteran. On VA outpatient treatment in March 2006, the veteran complained of fatigue at noon time and a low testosterone level. The veteran's testosterone level in February 2006 was reviewed and showed a level of 298. The assessment included idiopathic central hypogonadism. On VA examination in April 2006, the veteran complained of a history of hypogonadism and some fatigue. The assessment was a history of hypogonadism. On VA examination in June 2006, the veteran complained of persisting low testosterone levels. The VA examiner reviewed the veteran's claims file, including his service medical records. He commented that the veteran's reported symptoms seemed to be neurasthenia and were as likely as not related to the veteran's clinical depression as to his hypogonadism. The veteran had the expected effects of hypogonadism on decreased libido and erectile dysfunction; however, the VA examiner stated that there was no evidence of muscle weakness or atrophy. This examiner also stated that the veteran's symptoms were mostly psychosocial since he was not physically disabled by any of his complaints. The veteran's testosterone level was 298, with a normal range between 241- 827. The diagnosis was central hypogonadism. The Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to an initial compensable rating for hypogonadism. The veteran's service- connected hypogonadism is not manifested by a penis deformity with loss of erectile power such that a minimum 20 percent rating is warranted under DC 7522. See 38 C.F.R. § 4.115b, DC 7799-7522 (2007). Instead, the medical evidence shows continuing treatment for hypogonadism. As noted above, there is no evidence that the veteran's hypogonadism should be increased for any other separate period based on the facts found throughout the appeal period. The evidence of record from the day the veteran filed the claim to the present supports the conclusion that he is not entitled to additional increased compensation during any time within the appeal period. As the preponderance of the evidence is against the veteran's claim, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to an initial compensable rating for hypogonadism is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs