Citation Nr: 1300244 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-19 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable initial evaluation for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1949 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Houston, Texas that granted service connection for prostate cancer and residuals thereof, including erectile dysfunction rated as noncompensable. The same rating decision also awarded special monthly compensation for loss of use of a creative organ. The present appeal refers solely to entitlement to a compensable rating for the Veteran's erectile dysfunction. In March 2012, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). See 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the period prior to May 7, 2008, the Veteran's erectile dysfunction was manifested by loss of erectile power, but no deformity of the penis. 2. For the period beginning on May 7, 2008, the Veteran's erectile dysfunction is manifested by loss of erectile power and Peyronie's disease, a deformity of the penis. CONCLUSIONS OF LAW 1. For the period prior to May 7, 2008, the criteria for an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7522 (2012). 2. For the period beginning on May 7, 2008, the criteria for a 20 percent initial evaluation for erectile dysfunction (with deformity of the penis) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for a compensable initial rating for his service-connected erectile dysfunction, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that where service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's VA treatment records and private treatment records are all in the claims file. The Veteran has not referenced any outstanding records for VA to obtain relating to his claim. In that regard, the Board remanded the Veteran's claim in March 2012 so that, among other things, Dr. R.S. could be contacted by the RO in relation to a May 2008 treatment record prepared by him (noted as "March 2008" in the Board remand in error) to seek clarification as to whether the Veteran had a deformity of the penis, including Peyronie's disease (i.e., whether the diagnosis was provisional or definitive). Subsequently, Dr. R.S. wrote an April 2012 letter to VA explaining that the Veteran did in fact have Peyronie's disease. The Board also directed in its March 2012 remand that the Veteran be provided with another opportunity to submit Forms 21-4142 authorizations so that the RO could obtain copies of any outstanding treatment records relating to the Veteran's claim. Pursuant to the Board's remand directive, in March 2012, the RO sent a letter to the Veteran requesting that he provide Forms 21-4142 to authorize VA to obtain any such outstanding treatment records, including any records from Drs. R.S.L. or R.S. See Statement, October 2011. In reply, the Veteran sent Forms 21-4142 for Drs. R.S.L., R.S., and H.S. The RO sent April 2012 requests for copies of any relevant private treatment records from all three physicians, which were subsequently received and associated with the claims file. In light of the above, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). By way of background, the Board notes that service connection for erectile dysfunction was granted by the RO in December 2005 with a noncompensable rating, effective June 7, 2005 based on a diagnosis in a December 2005 VA examination relating to the Veteran's separate claim for service connection for prostate cancer (which separate claim was filed on June 7, 2005). The Veteran appealed the noncompensable rating for his erectile dysfunction, and he was subsequently provided with the July 2007 VA examination. Subsequently, the Veteran asserted that the July 2007 VA examination was inadequate. Based thereon, in March 2012, the Board remanded the Veteran's claim so that, among other things, he could be afforded a new VA examination. Pursuant to the Board's March 2012 remand directive, the Veteran was afforded a new VA examination in June 2012. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's erectile dysfunction since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds that the June 2012 VA examination report is thorough, complete, and adequate upon which to base a decision with regard to the Veteran's claim. The June 2012 VA examination report reflects that the examiner personally reviewed the claims file, examined the Veteran, and provided sufficient detail to rate the Veteran under the applicable diagnostic criteria. Therefore, the Board finds that there has been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537. II. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2012). When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's erectile dysfunction is currently assigned a noncompensable initial rating under Diagnostic Code 7522, effective June 7, 2005. The Veteran seeks a higher initial rating. Diagnostic Code 7522 provides a single, 20 percent rating for deformity of the penis with loss of erectile power. "[W]here the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." 38 C.F.R. § 4.31 (2012). As noted in the VCAA section above, the Veteran was provided with a VA examination relating to his claim in July 2007. The VA examiner noted that the Veteran described experiencing erectile dysfunction. The July 2007 VA examination report clearly notes that a physical examination of the Veteran's penis was performed (despite the Veteran's assertion to the contrary), that the Veteran's penis was normal on examination, and that an assistant was not present during the examination of his penis because the Veteran specifically stated that he did not want one. The Veteran did not report any deformity of the penis, including no report of any curvature or Peyronie's disease. Similarly, the Board notes that various private urology records from Dr. R.S. dated prior to May 7, 2008 reflect that the Veteran's penis was normal on physical examination and that the Veteran did not report any penis curvature or other deformity despite discussion and treatment for erectile dysfunction. See, e.g., October 2005, April 2006, May 2006, October 2006, April 2007, November 2007. Likewise, his private treatment records from his oncologist, Dr. R.S.L., dated prior to May 7, 2008 do not reflect any notations of any deformity of the penis, although they do reflect complaints of impotence. See, e.g., March 2007, September 2007. A May 7, 2008 private treatment record from Dr. R.S. reflects that the Veteran reported experiencing an upward curvature of his penis, and Dr. R.S. recorded a diagnosis of Peyronie's disease. Subsequently, in a statement submitted with his May 2008 Substantive Appeal, the Veteran asserted for the first time in this matter that he has Peyronie's disease relating to his erectile dysfunction. The Veteran was provided with another VA examination in June 2012. The VA examiner noted the Veteran's history of radiation treatment in April 2005 for his service-connected prostate cancer, and noted that the Veteran was diagnosed with erectile dysfunction as a result of the radiation therapy. The examiner noted that physical examination revealed an abnormality of the penis, noted as an indurated/nodular area of the penis shaft at the upper-mid level. The examiner recorded a diagnosis of a penis deformity, Peyronie's disease, and opined that the Veteran's Peyronie's disease was a result of his radiation therapy for his service-connected prostate cancer. The examiner reasoned that there was medical evidence of diagnosis and treatment for Peyronie's disease as a residual from the radiation treatment. The examiner noted that the Veteran's erectile dysfunction and Peyronie's disease has no impact on his occupational functioning. In light of all of the above, the Board finds that for the period prior to May 7, 2008, the Veteran's service-connected erectile dysfunction was not manifested by a deformity of the penis and, therefore, does not meet the criteria for a compensable rating under Diagnostic Code 7522. The Board notes that there is no medical evidence of record of any deformity of the penis dated prior to May 7, 2008. Again, as indicated above, the July 2007 VA examiner noted that physical examination of the Veteran's penis was normal. While the Board acknowledges that the Veteran has indicated that no actual physical examination of his penis was performed by the July 2007 VA examiner, the Board notes that such an assertion is incredulous given the notations of the examiner, including the fact that the Veteran declined to have an assistant present during the examination. Regardless, even without taking the July 2007 VA examiner's findings into account, there is a plethora of private treatment records dated prior to May 7, 2008, discussed above, all showing that the Veteran's penis was normal and that he never complained of any deformity of the penis despite discussion and treatment for his erectile dysfunction. Therefore, the Board finds that the preponderance of the evidence is against granting a higher, 20 percent rating under Diagnostic Code 7522 for the period prior to May 7, 2008 for erectile dysfunction with loss of penile power and deformity of the penis. The Board acknowledges that the Veteran stated in his October 2006 notice of disagreement that he should be granted a 20 percent rating for erectile dysfunction with loss of penile power and deformity of the penis. Given the facts of this case, however, particularly the volume of private treatment records dated prior to May 7, 2008 all reflecting a normal penis on examination and a lack of complaint of any deformity of the penis, the Board finds that the medical evidence preponderates against the Veteran's lay assertion such that it is not enough to bring the evidence into relative equipoise. For the period beginning on May 7, 2008, in light of the medical evidence of diagnosed Peyronie's disease as well as the opinion of the June 2012 VA examiner, the Board finds that the Veteran's erectile dysfunction has manifested by symptoms including loss of erectile power and Peyronie's disease, a deformity of the penis and, therefore, that the criteria for the maximum 20 percent rating under Diagnostic Code 7522 have been met. The Board acknowledges that, as noted by the RO in its October 2012 Supplemental Statement of the Case (SSOC), the June 2012 VA examiner checked the box in his report indicating that it is "less likely as not" that the Veteran's Peyronie's disease is proximately due to or the result of a service-connected condition. At the same time, however, the Board finds that it is clear based on the VA examiner's report taken as a whole that the wrong box was marked, and that the examiner intended to check the box indicating that the Veteran's claimed condition is at least as likely as not proximately due to or the result of his service-connected condition. The Board also acknowledges, as noted by the RO in its October 2012 SSOC, that the examiner noted that there was no erection on examination and that, therefore, the Veteran's Peyronie's disease was not evident in that regard (i.e., with an erection on examination). At the same time, however, the Board notes that the VA examiner nevertheless found a nodular/indurated area on the Veteran's penis shaft on physical examination, and cited the Veteran's private treatment records showing diagnosed Peyronie's disease in recording his own diagnosis of a deformity of the penis, Peyronie's disease. Therefore, the Board notes that the VA examiner's diagnosis of a deformity of the penis, Peyronie's disease, was based on both physical findings and the Veteran's medical records as opposed to a mere history by the Veteran. The Board has considered whether the Veteran would be entitled to a higher rating under any other diagnostic code. The Board finds, however, that there is no other diagnostic code that contemplates the Veteran's condition or symptomatology. The Board adds that as provided for in Note 1 to Diagnostic Code 7522, special monthly compensation under 38 C.F.R. § 3.350 for loss of use of a creative organ has already been granted by way of the December 2005 rating decision, effective June 7, 2005, and is not the subject of appeal herein. In summary, the Board finds that for the period prior to May 7, 2008, a preponderance of the evidence is against granting a compensable rating for the Veteran's erectile dysfunction; and for the period beginning on May 7, 2008, the preponderance of the evidence is in favor of granting a 20 percent rating. 38 C.F.R. § 4.115b (2012). The benefit of the doubt rule is not for application; there is not an approximate balance of evidence. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Board has considered whether referral for an extraschedular rating is appropriate. "The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. . . The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. . ." Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet.App. 57, 60 (1993), and Floyd v. Brown, 9 Vet.App. 88, 95 (1996)). "Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. . .[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun at 115. "[I]n the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' 38 C.F.R. § 3.321(b)(1) (related factors include 'marked interference with employment' and 'frequent periods of hospitalization')." Thun at 115-116. "When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating." Thun at 116. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's erectile dysfunction is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As such, an extraschedular rating is not appropriate. Finally, the Veteran has not asserted, nor does the record in any way suggest, that this disability is disabling in such a way as to raise a request for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the period prior to May 7, 2008, entitlement to a compensable evaluation for erectile dysfunction is denied. For the period beginning on May 7, 2008, entitlement to a 20 percent evaluation for erectile dysfunction is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs