Citation Nr: 1521531 Decision Date: 05/20/15 Archive Date: 05/26/15 DOCKET NO. 13-27 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a compensable initial rating for erectile dysfunction. REPRESENTATION Appellant represented by: Deana Adamson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In February 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that the November 2010 rating decision included two issues (prostate cancer and erectile dysfunction). The Veteran filed a timely notice of disagreement as to both issues, and the RO issued a separate Statement of the Case for each issue. In September 2013, the Veteran submitted a VA Form 9. Although the Veteran checked the box that he wanted to appeal all the issues listed on the Statement of the Case, he only discussed erectile dysfunction in box 10 of the VA Form 9. In addition, he only identified the erectile dysfunction issue as being on appeal at the Board hearing. Thus, the Board finds that only the issue of entitlement to a compensable rating for erectile dysfunction is for appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has erectile dysfunction with an internal deformity of the penis such that he is entitled to a 20 percent rating under Diagnostic Code 7522. The Veteran was diagnosed with prostate cancer on January 23, 2010. He underwent a robot-assisted prostatectomy in March 2010. The Veteran testified that after his prostatectomy, he had erectile dysfunction and an internal penile deformity. He contends that Viagra, Cialis, and penile injections do not help with his erectile dysfunction. The Board notes that the Veteran had some erectile dysfunction prior to a diagnosis of prostate cancer and prostate surgery in 2010. (Private records in July and August 2009, and January 2010 reflect a prescription for Viagra.) A November 2010 VA examination does not discuss the internal nature of the Veteran's penis. In Williams v. McDonald, 2015 WL 403568 (Vet. App. January 29, 2015), the United States Court of Appeals for Veterans Claims held that VA's duty to assist had not been satisfied when VA had obtained an examination, which noted that the appellant's penis was normal, but failed to include testing for an internal deformity. Based on the foregoing, the Board finds that a supplemental opinion and/or another examination, is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination of the Veteran's penis. The examiner should opine as to whether it is as likely as not that the Veteran has an internal physical deformity of the penis, and if so whether it is as likely as not due to his prostate cancer and/or his robot-assisted prostatectomy. (The Veteran contends that his prostatectomy has caused an internal deformity of his penis.) In providing an opinion, the examiner should discuss the type of surgery, the physical location of the area upon which the prostatectomy was performed, and whether such surgery caused a physical deformity to the actual penis (whether externally or internally). The examiner may also consider, if pertinent, that the Veteran had some erectile dysfunction prior to his 2010 prostatectomy (as indicated by the use of Viagra in July and August 2009), and his contention that treatment has not helped his erectile dysfunction since his surgery. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. 2. Thereafter, readjudicate the issue on appeal of entitlement to compensable rating for erectile dysfunction with penis deformity, with consideration of all additional evidence received since issuance of the Statement of the Case in July 2013. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).