Citation Nr: 0810704 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-00 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable initial rating, in excess of the amount allowed as special monthly compensation under 38 U.S.C.A. § 1114(k), for loss of use of a creative organ. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran, veteran's spouse ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from October 1966 to September 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 1997 decision of the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO), which denied a claim for benefits under 38 U.S.C.A. § 1151 for loss of use of a creative organ. The Board Remanded the claim in October 2001, and granted entitlement to benefits as if for a service-connected disability under 38 U.S.C.A. § 1151 for loss of use of a creative organ. The veteran seeks a compensable initial schedular evaluation following the effectuation of the Board's finding that the veteran was entitled under 38 U.S.C.A. § 1151 to benefits for loss of use of a creative organ. The case returns to the Board for appellate consideration of the initial evaluation. FINDING OF FACT The veteran has loss of erectile power, but the evidence establishes that the veteran does not manifest a deformity of the penis, and no criterion for referral for an extraschedular evaluation has been met; an award of special monthly compensation for loss of use of a creative organ as specified by statute is already in effect. CONCLUSION OF LAW The criteria for a compensable initial disability evaluation for loss of use of a creative organ, other than the amount the veteran has already been awarded as special monthly compensation under 38 U.S.C.A. § 1114(k), have not been met. 38 U.S.C.A. §§ 1114, 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.115b, Diagnostic Code 7522 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the veteran contends that he is entitled to a compensable initial disability evaluation for loss of use of a creative organ. In the alternative, the veteran asserts that he is entitled to an increased amount of special monthly compensation (SMC) for loss of use of a creative organ. Specifically, the veteran's representative contends in the April 2007 informal hearing presentation (IHP) that the veteran's "total loss of erectile power is every bit as disabling as that of a veteran who has lost this identical function through a deformity of the penis . . ." and that the veteran's disability should be evaluated under Diagnostic Code 7255. The veteran was originally awarded entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for loss of use of a creative organ in a decision by this Board issued in March 2005. The RO implemented the Board's decision in a rating decision dated March 2005. The RO evaluated the veteran's disability as a non-compensable disability, effective September 19, 1995. The RO also awarded special monthly compensation for anatomical loss of a creative organ, effective September 19, 1995. See 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a) (2007). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). 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 in or aggravated by military service and the residual conditions in civilian occupations. 38 U.S.C.A.§ 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. In initial ratings cases, 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board finds that the veteran's disability has not significantly changed throughout the appeals process and a uniform evaluation is warranted in this case. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2007). Under 38 C.F.R. § 4.115b, Diagnostic Code 7522, a 20 percent evaluation is warranted for deformity of the penis with loss of erectile power. There is no other alternative criterion which warrants assignment of a 20 percent evaluation, and a 20 percent evaluation is the maximum schedular evaluation provided under that Diagnostic Code. Factual Background and Analysis The Board has reviewed all of the evidence of record. The evidence of record shows that the veteran is not entitled to a compensable initial rating under Diagnostic Code 7522. Specifically, the Board finds that although the veteran experiences loss of erectile power, there is no evidence of record to show that the veteran has a penis deformity. The first pertinent treatment note is dated December 1993. The veteran presented to VA for a urological evaluation at that time. The examiner diagnosed the veteran as having erectile dysfunction. The examiner linked the veteran's erectile dysfunction to treatment for endocarditis in 1990. No evidence of a penis deformity was noted at that time. In March 1995, the veteran presented to a VA urologist and provided a medical history which was significant for hypertension, peripheral vascular insufficiency, and impotence. The VA urologist administered an intrapenile injection of papaverine at that time. The veteran subsequently developed priapism for approximately 30 hours which eventually subsided following "irrigation" of the penis. Although no complications were noted following the irrigation, the veteran was unable to achieve an erection after this incident. Notably, there is no evidence of a penis deformity contained in the treatment note at that time. The Board notes that the veteran was afforded a VA Compensation and Pension (C&P) Examination in September 1996. The examiner noted that the veteran was treated for a variety of health problems in 1990 and 1991, including endocarditis, cerebral abscess, and a splenectomy, among other conditions. The examiner noted that the veteran "suffered erectile impotence after all these surgeries and episodes in 1990." The veteran stated that he had total erectile dysfunction and impotence after his bout with priapism. He used a vacuum device without satisfactory effects. Upon physical examination, the examiner found no evidence of a penis deformity. The examiner diagnosed the veteran as having erectile dysfunction, total impotence. A November 1996 addendum to the C&P examination indicated that the veteran experienced a loss of penile erectile function. No evidence of a penis deformity was found, but the examiner noted the presence of a very mild distal shaft induration. The veteran was afforded a second VA C&P examination in connection with the current claim in March 1997. The examiner noted that the veteran had impotence and sexual dysfunction prior to the papaverine test in March 1995. In particular, the examiner indicated that the veteran was diagnosed as being impotent in June 1993. The examiner recounted the events surrounding the March 1995 papaverine injection and the veteran's priapism. The examiner stated that the veteran did not have a penile deformity, but rather only a mild distal shaft induration. The veteran and his wife testified before a decision review officer in August 1997. The veteran testified that he experienced a prolonged erection for approximately 30 hours after the papaverine injection was administered. The veteran also testified that he was sent home without proper medical instruction or supervision and that he was unable to achieve an erection since this incident. When the veteran returned to the emergency room with priapism, he was purportedly advised to have numerous injections in his penis to reduce the priapism or risk amputation of his penis. The veteran also indicated that he fathered a child who was born in February 1995, approximately one month prior to the papaverine injection. The veteran's wife indicated that the veteran was "a different man" following the priapism incident. She indicated that the veteran was more nervous and less communicative. No evidence of a penis deformity was discussed at that time. The veteran and his wife also testified at a Travel Board hearing in connection with this case in January 2001. The veteran testified that he had intermittent "loss of potency" dating back to 1990. The veteran also discussed the circumstances surrounding his March 1995 bout with priapism. The veteran testified that he was not told of the risks associated with having numerous injections in his penis to reduce the priapism. The veteran was purportedly told that without these injections, he would risk having his penis amputated. The veteran further testified that he had completely lost the ability to achieve an erection since this incident. The veteran's wife testified that she and the veteran conceived a child prior to the papaverine injection. No evidence of a penis deformity was discussed at that time. VA administered another C&P examination in connection with the current claim in February 2006. The examiner noted the veteran's past medical history of priapism. The examiner also noted that the veteran developed erectile dysfunction following "evacuation of the corpora cavernosa" which was related to the episode of priapism. Upon physical examination, the examiner found no evidence of a penis deformity. The examiner diagnosed the veteran as having erectile dysfunction secondary to prolonged priapism followed by evacuation of the corpora cavernosa. The Board notes that the veteran submitted a newspaper article that discussed erectile dysfunction. This article was reviewed and associated with the veteran's claims file. This evidence, however, does not have bearing on the issue on appeal. See 38 C.F.R. § 20.1304(c) (2007). Specifically, this article is too general in nature to provide, alone, the necessary evidence to warrant a compensable initial rating for loss of use of a creative organ. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, the article in the current case does not address the facts of the veteran's specific case. Thus, the Board concludes that this article does not show evidence that the veteran had a penis deformity. Given the evidence of record, the Board finds that the veteran is not entitled to a compensable initial rating for loss of use of a creative organ. Notably, the clinical evidence establishes that the veteran does not have a deformity of the penis. Although there is a slight induration (a firm or hard area, Stedman's Medical Dictionary 893 (27th ed. 2000)), the clinical examiners and providers clearly stated that this was not medically equivalent to a deformity. The overwhelming preponderance of the evidence is against the claim for a compensable schedular evaluation for loss of use of a creative organ, since there is no evidence of deformity. Unfortunately, the rating schedule does not provide for a compensable rating for loss of use of the penis as a creative organ unless it is associated with deformity. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Accordingly, in the absence of any evidence of deformity of the penis, the criteria for a compensable initial rating are not met. As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome as to a schedular evaluation. 38 U.S.C.A. § 5107(b). The veteran also contends, in the alternative, that he should be awarded an extraschedular evaluation or a greater amount of special monthly compensation (SMC) as a result of his loss of use of a creative organ. The Board is not authorized to ward an extraschedular evaluation in the first instance. 38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337, 338- 39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In exceptional cases where the schedular evaluation is found to be inadequate, pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service may approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board may refer a claim for evaluation when a disability results in such an unusual disability picture. However, in this case, the veteran has not alleged that loss of use of a creative organ interfered with his employment, and the evidence establishes that loss of use of a creative organ could not interference with any past employment held by the veteran. The criteria for evaluation of disabilities, on a schdular or an extraschedular basis, are meant to compensate a veteran for interference with employment. In this case, no such interference is shown, so a compensable evaluation is not warranted under the regulations on a schedular or on an extraschedular basis. By statute, loss of use of a creative organ may be compensated though special monthly compensation. The Board lacks authority to grant an increase in special monthly compensation. See 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). The amount of SMC is set by Congress, not the Board. Thus, the veteran is encouraged to contact his member of Congress if he is dissatisfied with the amount of SMC that he currently receives as a result of his disability. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the veteran was not provided with proper VCAA notification in this case. However, any deficiency in the notice to the veteran or the timing of the notice is harmless error which did not affect the essential fairness of the case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the 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. Id. at 490-91. The Board notes that the veteran's claims were adjudicated and he was granted compensation under 38 U.S.C.A. § 1151 for loss of use of a creative organ in a rating decision dated March 2005. The RO assigned a non-compensable disability rating, effective September 19, 1995. The RO also awarded special monthly compensation for anatomical loss of a creative organ, effective September 19, 1995. Thus, the claims were substantiated at that time. As a result, the 38 U.S.C.A. § 5103(a) notice served its purpose and its application was no longer required. See Dingess, supra. The veteran's current claim arises out of his disagreement with the initial evaluation following the grant of compensation. However, in light of Dingess, the Board finds that the veteran's claim has been substantiated, additional notice is not required, and any defect in notice is not prejudicial. To the extent that the Board has declined to award an increase in special monthly compensation or an extraschedular evaluation, such determination is required as a matter of law, and no notice to this effect is required, since the veteran cannot substantiate by fact or law a claim for a benefit that the Board is not authorized to award. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The veteran's available service medical records have been obtained. The veteran's post-service treatment records have been obtained. The veteran was afforded multiple VA examinations in connection with the current claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of the evidence is required. ORDER The appeal for an initial compensable rating for loss of use of a creative organ, beyond the compensation authorized under 38 U.S.C.A. § 1114, is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs