Citation Nr: 0810979 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-31 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation for erectile dysfunction. 2. Entitlement to an increased rating for diabetes mellitus, rated 10 percent disabling. 3. Entitlement to an increased rating for prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2004 and September 2006 rating decisions by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, established service connection for loss of use of a creative organ and reduced a 100 percent evaluation for prostate cancer to 0 percent. As the veteran has perfected an appeal as to the initial evaluation assigned for erectile dysfunction, the Board has characterized this issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson requires that the claim not be construed as a claim for increased rating, the requirements of Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) are not applicable to the present claim. The Board noted that a formal rating action awarding service connection for erectile dysfunction was never accomplished by the RO. However, a June 2005 statement of the case (SOC) indicated that a compensable rating for erectile dysfunction was denied, and 38 C.F.R. § 4.115b, Diagnostic Code 7522 was cited. The Board construes this SOC as a rating action awarding service connection for penis deformity with loss of erectile power and assigning a noncompensable evaluation. The Board accepts the September 2005 VA Form 9 as the notice of disagreement (NOD) to this issue. Thus, the September 2005 supplemental statement of the case is the RO's response to the NOD. The Board will accept the VA Form 646 from the veteran's representative as a substantive appeal to this issue. However, the fact remains that RO has failed to include this disability on a proper rating sheet. The RO is advised to do so immediately. The issue of an increased evaluation for prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. Erectile dysfunction is presently manifest by a penile deformity only with no evidence of a loss of erectile power. 3. On February 7, 2007, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal as to an increased rating for diabetes mellitus is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.115b, Diagnostic Code 7522 (2007). 2. The criteria for withdrawal of a Substantive Appeal for the issue of an increased rating for diabetes mellitus by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in September 2004. That letter notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). Although the veteran has not been provided with the VCAA requirements of the duty to assist and duty to notify as it pertains to the issue of increased rating, this claim is a downstream issue from the grant of service connection. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues, and that a Court decision suggesting otherwise was not binding precedent. VAOPGCPREC 8-2003, 69 Fed.Reg. 25180 (May 5, 2004); cf. Huston v. Principi, 17 Vet. App. 370 (2002). The Board is bound by the General Counsel's opinion. 38 U.S.C.A. § 7104(c) (West 2002). VAOPGCPREC 8- 2003; 69 Fed.Reg. 25180 (May 5, 2004). While this logic is called into some question in a recent Court case, neither this case nor the GC opinion has been struck down. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, as discussed below information in the folder provides sufficient information to allow decision to be entered on the matters decided herein. The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Laws and Regulations When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. When the positive and negative evidence as to a veteran's claim are in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the veteran prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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, as in the instant claims, 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). 7522 Penis, deformity, with loss of erectile power 20 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2007). The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. Erectile Dysfunction In this case, the veteran was granted entitlement to special monthly compensation for loss of use of a creative organ as a residual of prostate cancer secondary to herbicide exposure by the RO in December 2004. Additionally, the veteran's service-connected erectile dysfunction has been rated zero percent disabling by the RO under the provisions of Diagnostic Code 7522. 38 C.F.R. § 4.115b. Private treatment records indicate that the veteran was found to have adenocarcinoma of the prostate and underwent a radical retropubic prostatectomy in March 1996. During follow-up visits in April 1996 and February 1997 the veteran complained of impotence. A treatment plan was discussed. On VA examination in March 2005, the veteran stated that he had a penile prosthesis implanted in 1998 due to erectile dysfunction. He reported an ability to have successful sexual intercourse with vaginal penetration and ejaculation with his penile implant. On objective examination, the examiner observed a circumcised penis normal in appearance. It was noted that the penile implant was palpable in the penile shaft, and no lesions were noted. The scrotal sac appeared without edema, erythema, or tenderness. The testes were descended in their normal anatomic position bilaterally, and slight atrophy was observed. No tenderness, masses, or indurations were noted. The diagnosis was erectile dysfunction that was being adequately treated with a penile implant. During an April 2006 VA genitourinary examination, the veteran stated that his penile implant allowed him to have successful intercourse. He denied use of any medications for erectile dysfunction. He also denied any history of testicular or penile trauma. He stated that vaginal penetration was possible, but he had no ejaculate. The examiner noted a penile implant palpable in the shaft of the penis. He observed no penile, testicular or scrotal lesions or masses. It was noted that the left testicle was small and atrophied when compared to the right. The examiner opined that the veteran had residual erectile dysfunction since prostatectomy that resulted in a penile implant. The veteran clearly suffers erectile dysfunction secondary to service-connected prostate cancer. The question herein is whether the veteran is entitled to a 20 percent evaluation under Diagnostic Code 7522, which entails both loss of erectile power and deformity of the penis. While the objective medical evidence reveals the presence of a penile implant, it does not reveal a loss of erectile power. The Board cannot conclude there is a loss of erectile power when the medical examinations conducted in March 2005 and April 2006 specifically found that vaginal penetration was possible. The Board cannot grant a 20 percent evaluation under Diagnostic Code 7522 for deformity of the penis with loss of erectile power when there is no loss of erectile power. The veteran has been granted benefits for loss of use of creative organ based on the March 1996 radical retropubic prostatectomy which causes the veteran's semen to empty into his bladder instead of his urethra. The Board emphasizes that the medical evidence is entirely silent as to loss of erectile power after the veteran received his penile implant in 1998. The veteran's service-connected prostate cancer seems to have caused only loss of ejaculation for which service connection on a secondary basis was granted. Such loss alone warrants only a zero percent evaluation, as the criteria for a compensable evaluation under Diagnostic Code 7522 requires loss of erectile power. 38 C.F.R. §§ 4.31, 4.115b. In sum, the only symptom attributable to the service- connected erectile dysfunction is simply the penile implant. This alone without related loss of erectile power is insufficient for the granting of a compensable evaluation under Diagnostic Code 7522. As the veteran does not meet the minimal criteria for a compensable evaluation under this provision, a noncompensable evaluation is assigned. 38 C.F.R. § 4.31. Consideration has been given to the potential application of various provisions of 38 C.F.R. Parts 3 and 4 (2006) whether or not raised by the veteran, as required by Schafrath. However, the Board finds no basis on which to assign a higher disability evaluation in that the veteran manifests no separate and distinct symptoms of erectile dysfunction not contemplated in the currently assigned zero percent rating permitted under the Schedule. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Diabetes Mellitus Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). The appellant (, through his/her authorized representative,) has withdrawn the appeal concerning an increased rating for diabetes mellitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to an initial compensable evaluation for erectile dysfunction is denied. The appeal as to an increased rating for diabetes mellitus is dismissed. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) are applicable to this remand. In October 2006 the veteran submitted a notice of disagreement (NOD) with a rating decision issued in September 2006 which reduced an evaluation of prostate cancer from 100 percent disabling to 0 percent. The claims folder had been transferred to the Board in September 2006. The filing of a NOD initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). The RO has not yet had the opportunity to issue a Statement of the Case regarding this issue. 38 C.F.R. § 19.26 (2007). The United States Court of Appeals for Veterans Claims has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the RO to issue a statement of the case and to provide the veteran an opportunity to perfect the appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). In view of the foregoing, the case is REMANDED for the following actions: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) and by Court decisions are fully complied with and satisfied. 2. After all VCAA requirements have been addressed, the AMC/RO should take appropriate action pursuant to 38 C.F.R. § 19.26 (2007), including issuance of an appropriate statement of the case addressing the issue of an increased evaluation for prostate cancer. The veteran should be advised of need to file a timely substantive appeal if the veteran desires to complete an appeal as to this issue. If a timely substantive appeal is received, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2005). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs