Citation Nr: 1625014 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 08-31 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable rating for erectile dysfunction. REPRESENTATION Appellant represented by: Harold H. Hoffman III, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted a separate rating for erectile dysfunction and assigned a noncompensable rating, effective January 25, 2008. In April 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO). A transcript of the hearing is of record. In June 2012, the Board denied the instant matter. The Veteran subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In a January 2015 Memorandum Decision, the Court vacated the Board's June 2012 decision and remanded the claim to the Board for further adjudication. In September 2015, the Board remanded the instant matter pursuant to the January 2015 Memorandum Decision. FINDINGS OF FACT 1. For the entire appellate period, the Veteran's erectile dysfunction is manifested by loss of erectile power without objective findings of deformity of the penis associated with the service-connected disability. 2. The Veteran is already in receipt of the maximum level of SMC for loss of use of a creative organ. CONCLUSION OF LAW The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1114(k), 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.14, 4.31, 4.115b, Diagnostic Code 7522 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on the claim for VA benefits. With regard to the initial rating claim for erectile dysfunction, the Veteran has appealed with respect to the propriety of the initially assigned rating from the original grant of benefits. In Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), the United States Court of Appeals for Veterans Claims (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 and that a 38 U.S.C. § 5103(a) notice not necessary because the purpose that the notice was intended to serve has been fulfilled. See also Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007). Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required. Relevant to the duty to assist, the Veteran's service treatment records, post-service VA and private treatment records, and VA examination reports have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board determines that the AOJ has substantially complied with the September 2015 remand, as the Veteran underwent a December 2015 Disability Benefits Questionnaire (DBQ) examination to determine the current nature and severity of his erectile dysfunction, to specifically include determination as to whether the Veteran suffered from nerve damage or internal deformity pertinent to his erectile dysfunction. This matter was consequently readjudicated in a December 2015 supplemental statement of the case. As such, the Board finds that the AOJ substantially complied with the mandates of its remand. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. Additionally, the Veteran was afforded VA examinations in January 2008, April 2009, January 2012, and December 2015. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected erectile dysfunction as they include interviews with the Veteran, review of the record, and full physical examinations addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. In April 2009, the Veteran was afforded a DRO hearing in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the DRO essentially sought to identify any pertinent evidence not currently associated with the claims file that would help substantiate the claim that may have been overlooked. As such, the Board finds that consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran seeks an initial compensable rating for his erectile dysfunction. Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (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. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings can be assigned for separate periods of time based on the facts found. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In general, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). Historically, the AOJ granted a separate rating for erectile dysfunction in the March 2008 rating decision and assigned a noncompensable rating, effective January 25, 2008. Additionally, in a July 2007 rating decision, the AOJ awarded special monthly compensation (SMC) based on loss of use of creative organ pursuant to 38 U.S.C.A. § 1114(k) effective June 14, 2007. The Board notes that there is no specific diagnostic criterion for erectile dysfunction. See generally 38 C.F.R. § 4.115b, Ratings of the Genitourinary System, Diagnostic Codes 7500-42. When a Veteran is diagnosed with an unlisted disease, the condition must be rated under an analogous diagnostic code. 38 C.F.R. §§ 4.20 and 4.27. Here, the RO has rated the Veteran's erectile dysfunction under Diagnostic Code 7599-7522, which represents an unlisted genitourinary disability evaluated by analogy to penis deformity with loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. See generally 38 C.F.R. §§ 4.20, 4.27 (providing that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99"). Pursuant to Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this diagnostic code. The Board notes that, in every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that no other schedular criteria are applicable to erectile dysfunction. As discussed above, the AOJ has separately awarded the maximum rating for SMC based upon loss of use of a creative organ under 38 U.S.C.A. § 1114(k). This compensation contemplates impotence, and may be awarded even if the Veteran can achieve erection and penetration with the use of medication. See Veterans Benefits Administration (VBA) Adjudication Manual M21-1, Part III.iv.4.I.2.b (Entitlement to SMC Associated With Erectile Dysfunction). A separate rating under Diagnostic Code 7522 may only be awarded deformity of the penis with loss of erectile power. See M21-1, Part III.iv.4.I.2.a (Deformity of the Penis With Loss of Erectile Power). However, VBA has indicated that a compensable rating under Diagnostic Code 7522 is not warranted in the absence of deformity, and instructs that such deformity be "evident." Id. A January 2008 VA examination report reflects that the Veteran's major complaint was his erectile dysfunction since undergoing a radical prostatectomy in June 2007. The Veteran reported that he could not achieve erection sufficient for intercourse or ejaculation and that he tried Levitra without success. On physical examination, the examiner observed that penis was that of a normal male and that the Veteran's testicles were descended and normal in size and consistency. Impression provided was erectile dysfunction, severe, secondary to the June 2007 radical prostatectomy. The examiner noted that the Veteran worked as a janitor on a daily basis and that his employability was not affected by his service-connected disabilities, to include erectile dysfunction and prostate cancer, status post radical prostatectomy. An April 2009 VA examination report also noted the Veteran's erectile dysfunction diagnosis since the radical prostatectomy. The examiner noted that at the time, the Veteran was taking "Levitra 20 mg plus alprostadil 29 mcg injection." The Veteran reported that he was not able to achieve a full erection but that partial erection was attainable, which was still not sufficient for penetration. On physical examination, the examiner observed that the Veteran's penis was normal and circumcised. Both testicles were descended and were of normal size and consistency. The examiner stated that the Veteran was able to perform his job duties and that he worked as a janitor working 40 hours per week. A January 2012 DBQ examination report noted that the Veteran was not able to achieve an erection sufficient for penetration and ejaculation with or without medication. There was no finding of retrograde ejaculation. The examiner noted the Veteran's report that he stopped using medication for his erectile dysfunction because he saw no results from medication use. The examiner noted that there was no impact on the Veteran's ability to work. A December 2015 DBQ examination report noted that the Veteran suffered from erectile dysfunction due to prostatectomy and that he was not able to achieve an erection sufficient for penetration and ejaculation with or without medication. There was no finding of retrograde ejaculation or a history of chronic epididymitis, epididymo-orchitis, or prostatitis. On physical examination, the examiner observed a normal penis. The examiner found that the right testicle was abnormal in that it was "[s]ize 1/3 or less of normal" and "[c]onsiderably softer than normal." The epididymis was normal. The examiner opined that the Veteran suffered from nerve damage as result of the radical prostatectomy and that such nerve damage was "common and . . . a well-recognized complication following radical prostatectomy." The examiner then stated that the Veteran's erectile dysfunction was likely related to such nerve damage, but that there was "no evidence of deformity of the penis at all" and that nerve damage "does not cause deformities generally, but rather loss of function." The examiner further reasoned that "[d]eformity would occur in diseases such as Peyronie's disease, which [the Veteran] does not have." The examiner also noted that there were "no specific tests for 'internal deformity of the penis' that would show evidence of nerve damage." The examiner then stated that the Veteran was unable to have an erection and that the condition was considered severe. A June 2007 VA operative report notes that the Veteran's radical prostatectomy was not "a nerve-sparing" procedure due to the Veteran's "underlying erectile dysfunction." Subsequent VA treatment records generally reflect the Veteran's complaints of difficulty achieving erection sufficient for penetration even with medication, to include Levitra. See January 2009 VA treatment note; May 2010 VA treatment note; November 2011 VA treatment note. In a number of statements, the Veteran and his spouse's contentions generally focused on the extent and severity of the Veteran's inability to obtain and achieve erection even with medication. See July 2008 statement; April 2009 DRO hearing transcript; September 2010 statement. In a March 2016 statement, the Veteran's representative argued that the Veteran's erectile dysfunction resulted in "misshapen," "smaller, with less girth, and limp" penis, thereby warranting a higher rating for deformity of the penis. Based on the foregoing, the Board finds that the Veteran's erectile dysfunction is not manifested by deformity of the penis as to warrant a 20 percent rating under Diagnostic Code 7522. As discussed above, no deformity was found at any point pertinent to this appeal, to include examinations conducted in January 2008, April 2009, January 2012, and December 2015. With regard to the Veteran's general claim of inability to obtain and maintain an erection, with or without medication, such is an aspect already compensated by the SMC award for loss of use of a creative organ. As noted, the Veteran has been awarded VA compensation for impotence regardless of whether his impotence is complete or whether medications or implantations allow some form of erection and penetration. As such, any further compensation for erectile dysfunction alone, regardless of the severity, would constitute pyramiding prohibited under 38 C.F.R. § 4.14. The Board has considered whether the Veteran is entitled to a higher rating under Diagnostic Code under Diagnostic Code 7523, which provides a noncompensable rating for atrophy of one testicle and a 20 percent rating for atrophy of two testicles. To the extent that the December 2015 DBQ examination report reflects a finding of an "[a]bnormal" right testicle in size and consistency, the Board notes that the Veteran is currently assigned a noncompensable rating for his erectile dysfunction and that a compensable rating would not result under that circumstance. The Veteran does not contend, and the record does not reflect, that the Veteran is entitled to a compensable rating under other diagnostic codes for his erectile dysfunction. See generally 38 C.F.R. § 4.115b, Ratings of the Genitourinary System, Diagnostic Codes 7500-42. The Board acknowledges that, the Veteran's representative has reported penile deformity, in that the penis was "smaller, with less girth, and limp." See March 2016 statement of the representative. As a layperson, however, the Veteran or his representative is not competent to diagnose penile deformity. While the Board finds no reason to doubt the Veteran's or his representative's credibility regarding such observations, there is no indication that either the Veteran or his representative possesses the requisite knowledge to administer or interpret specialized testing that would reveal penile deformity. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, as noted, the VA examiners, who are medical professionals, found that on physical examination, the Veteran's penis was normal. Specifically, the December 2015 DBQ examiner opined that "there was no evidence of deformity of the penis at all," reasoning that deformity occurred in diseases such as Peyronie's disease, which the Veteran did not have, and that nerve damage generally did not cause deformity. As such, while the Board accepts the testimony from the Veteran and his representative with regard to the matters they are competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected erectile dysfunction. In conclusion, the preponderance of the evidence in this case is against a finding that a compensable rating is warranted under any applicable diagnostic codes for the Veteran's service-connected erectile dysfunction. As the preponderance of the evidence weighs against the initial rating claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). The Board has also considered whether any staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected erectile dysfunction; however, the Board finds that his symptomatology has been stable and has not met the criteria for an increased rating throughout the course of the appeal. Therefore, staged ratings are not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected erectile dysfunction with the rating criteria. The Board finds that the Veteran's erectile dysfunction symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's inability to obtain and maintain an erection is contemplated with the award of the maximum level of SMC for loss of use of a creative organ. Otherwise, the Veteran does not describe any aspects of disability that are not contemplated by his award of SMC benefits based upon loss of use of a creative organ. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no erectile condition that has not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect and the Veteran has not argued that he is unemployable due to his service-connected erectile dysfunction. Therefore, consideration of a TDIU is not warranted. The preponderance of the evidence is against the claim for a compensable rating for erectile dysfunction. A compensable rating for erectile dysfunction is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial, compensable rating for erectile dysfunction is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs