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