Citation Nr: 0811856 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-14 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating for erectile dysfunction. 2. Entitlement to an evaluation in excess of 50 percent for post traumatic stress disorder (PTSD). 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). 4. Entitlement to service connection for disorders of the cervical, thoracic, and lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from March 1966 until March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. The issues of entitlement to service connection for GERD and back disorders are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. It is noted that in a communication received in February 2007, the veteran requested a hearing before a Veterans Law Judge. Such hearing was scheduled in February 2008. However, the veteran failed to report. FINDINGS OF FACT 1. Prior to April 4, 2005, the competent evidence reveals that the veteran's erectile dysfunction symptoms were not improved by oral medications or intracavernous therapy; he was deemed a candidate for placement of a penile prosthesis. 2. From April 4, 2005, the evidence reveals that the veteran was able to resume sexual activity following placement of a penile prosthesis. 3. In correspondence received in April 2005, prior to the promulgation of a decision, the veteran requested a withdrawal of the issue of PTSD. CONCLUSIONS OF LAW 1. Prior to April 4, 2005, the criteria for entitlement to an evaluation of 20 percent, but no more, for erectile dysfunction have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.115b, Diagnostic Code (DC) 7522 (2007). 2. From April 4, 2005, the criteria for entitlement to a compensable evaluation for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.115b, Diagnostic Code (DC) 7522 (2007). 3. The criteria for withdrawal of his Substantive Appeal by the veteran on the issue of entitlement to a rating in excess of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 5103(a), 5103A, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2007) (as amended). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Erectile Dysfunction Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1. In addition, 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. See 38 C.F.R. § 4.7 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). At the outset, the Board notes that the veteran's claim of entitlement to a higher rating for erectile dysfunction is an appeal from the initial assignment of a disability rating. As such, the claim requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Throughout the rating period on appeal, the veteran's erectile dysfunction has been evaluated as noncompensable pursuant to DC 7522. That code section provides a 20 percent rating for penis deformity with loss of erectile power. The Board has reviewed the evidence of record, including a VA examination in December 2003. At that time, the veteran reported problems with impotence. Also of record are private treatment reports dated in 2004 and 2005. An August 2004 note revealed that the veteran's erectile dysfunction did not improve with oral medications or with intracavernous therapy. He was noted to be a candidate for placement of a penile prosthesis. A subsequent treatment record dated in March 2005 revealed that he elected to undergo such procedure, scheduled for April 4, 2005. The evidence of record also includes an August 2006 VA examination report. At that time, the veteran stated that since 2002 it was becoming progressively difficult to maintain an erection. In that year it became impossible for him to maintain sexual activity. It was noted that he had a prosthesis placed in April 2005. Following that operation, the veteran was able to resume satisfactory intimacy with his partner. Objectively, physical examination showed a penis with semi-rigid prosthesis in adequate position, without fibrosis. Testicles and prostate gland were normal. It was noted that he had difficulty attaining an orgasm, which the examiner stated could be attributed to medication he was taking for depression. Based on the findings revealed in the August 2006 VA examination report, it is clear that a compensable evaluation for erectile dysfunction is not warranted at present. Indeed, that report revealed that, following prosthesis placement in April 2005, the veteran was able to resume sexual activity. However, the Board finds that a 20 percent evaluation was warranted for the portion of the rating period on appeal prior to April 4, 2005. In reaching the above conclusion, it is acknowledged that no evidence of record explicitly indicates a loss of penile power. However, the private treatment notes indicate that the veteran's erectile dysfunction symptoms did not improve with oral medications or with intracavernous therapy. The fact that he was found to be a candidate for placement of a penile prosthesis indicates that his disability picture most nearly approximated a 20 percent evaluation under DC 7522. The Board notes that a 20 percent rating is the maximum benefit afforded under DC 7522. There is no alternate basis for a higher rating. In sum, prior to April 4, 2005, the evidence supports a 20 percent rating, but no more, for erectile dysfunction. From April 4, 2005, a noncompensable evaluation is warranted. In so finding, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied as appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. Increased Rating for PTSD 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, 20.204(b) (2007). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2007). In this case, the Board finds that the issue of an increased rating for PTSD have been withdrawn. Specifically, April 2005 correspondence, the veteran wrote: Your decision regarding post traumatic stress disorder assigned 50% effective Dec 18, 2002 conclude[s] my appeal concerning this issue. As the veteran has withdrawn his appeal on this issue, 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 without prejudice. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's increased rating claim arises from his disagreement with the initial evaluation following the grant of service connection for erectile dysfunction. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's reports of private and VA treatment and examination. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). With respect to the claim for PTSD, inasmuch as the claim was withdrawn, the provisions of the VCAA are not for application. ORDER Prior to April 4, 2005, a 20 percent evaluation, but no higher, for erectile dysfunction is granted, subject to governing criteria applicable to the payment of monetary benefits. From April 4, 2005, a compensable evaluation for erectile dysfunction is denied. The claim for entitlement to an evaluation in excess of 50 percent for PTSD is dismissed without prejudice. REMAND With respect to the claim for GERD, the RO denied the claim in a December 2004 rating decision. In April 2005, the veteran submitted a notice of disagreement with that determination. With respect to the claims related to the cervical, thoracic, and lumbar spines, the RO denied the claims in February 2005. Correspondence dated in February 2005 can reasonably be construed as a notice of disagreement to these issues. However, the evidence of record does not reflect that a statement of the case (SOC) has been issued pursuant to 38 C.F.R. § 19.26 in response to the veteran's notices of disagreement on these two issues. In the past, the Board has referred such matters back to the RO for appropriate action. However, the Court has indicated that the proper action is to REMAND the issue to the RO for appropriate action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) ("Thus, the next step was for the RO to issue an SOC on the denial of the . . . claim, and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC.") Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case on the appeals initiated by the veteran for GERD and for cervical, thoracic, and lumbar spine disorders. 2. The veteran and his representative should be clearly advised of the need to file a substantive appeal if he wishes to complete an appeal from that determination. If an appeal is perfected, then the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2007). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs