Citation Nr: 1301170	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO. 09-35 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina



THE ISSUES

Entitlement to a compensable rating for erectile dysfunction.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Bredehorst



INTRODUCTION

The Veteran served on active duty from September 1968 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Columbia RO that granted special monthly compensation (SMC) for loss of use of a creative organ but denied a compensable rating for erectile dysfunction. 


FINDING OF FACT

The Veteran does not have a deformity of the penis with loss of erectile power.


CONCLUSION OF LAW

The criteria for a compensable rating for service-connected erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115b, Diagnostic Code (Code) 7522 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App"). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). 

A January 2009 pre-decisional letter provided the Veteran with notice of VA's duties to notify and assist him in the development of his claim consistent with the laws and regulations outlined above. The letter informed him of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, and the assistance that VA would provide to obtain information and evidence in support of his claim. He was also given notice regarding disability ratings and effective dates of awards. 

VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are associated with his claims file. VA also obtained all pertinent/identified records that could be obtained and all evidence constructively of record has been secured. The Veteran was afforded examinations that are adequate to rate the disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). VA's duty to assist is met.


Merits of the Claim

The Veteran contends that the service-connected disability at issue is more severely disabling than is reflected by the currently assigned rating. The preponderance of the evidence is against the claim, and the appeal will be denied. 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

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 (2012). 

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Veteran is seeking a compensable disability rating for his service-connected erectile dysfunction, which is currently evaluated as noncompensably disabling under Code 7522. He essentially contends that his erectile dysfunction and the resulting sexual difficulties warrant a compensable rating. 

There is no diagnostic code which deals with erectile dysfunction exclusively. Code 7522 is the most appropriate primarily because it is the only diagnostic code which includes loss of erectile power among its criteria. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate. 

Code 7522 provides a 20 percent rating for deformity of the penis with loss of erectile power. No other disability rating is provided by this diagnostic code. See 38 C.F.R. § 4.115b , Code 7522. Where the Rating Schedule does not provide a zero percent rating, a zero percent rating shall be assigned if the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31 (2012).

In February 2012, the Veteran expressed concern about not being compensated for his erectile dysfunction; however, the March 2009 rating decision on appeal that denied a compensable rating for erectile dysfunction also granted entitlement to special monthly compensation (SMC) based on loss of use of a creative organ under 38 U.S.C. § 1114(k) (West 2002). Indeed, while the disability was not given a compensable rating, compensation was awarded on the basis of SMC.

The Veteran and his wife also expressed their belief that other disabilities are making his erectile dysfunction worse. Since service connection is already established for erectile dysfunction, the manifestations of the disability rather than their etiology are probative to the seeking a higher rating.

To obtain a compensable rating under Diagnostic Code 7522, deformity of the penis with loss of erectile power must be demonstrated. In the present case, the Veteran and his wife have submitted statements regarding his inability maintain an erection and engage in sexual intercourse. The Veteran has been prescribed medication that has not helped his disorder. See a December 2008 VA treatment record, February 2009 VA examination, and January 2009, March 2010, and May 2010 statements. The Veteran's inability to achieve penetration or ejaculation is considered in the context of loss of erectile power, but it is not sufficient on its own to warrant a higher rating.

In addition to loss of erectile power, the rating criteria also require deformity of the penis to warrant a compensable evaluation. Separate VA genitourinary examinations in February 2009 and July 2011 found no evidence of penis deformity. Accordingly, the criteria for a compensable evaluation for erectile dysfunction have not been met. 

Because there is no evidence of penile deformity during the appeal period, the Board concludes that staged ratings under Hart are not for application in this case. 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). 

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran and his wife are competent to report his erectile problem, which affects his ability to have sexual intercourse. While their reports are credible and probative evidence regarding loss of erectile power, there are no findings or assertions of penis deformity, which is required to obtain a higher rating, as discussed above. 

Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 

The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The manifestations of the Veteran's erectile dysfunction are contemplated by the schedular criteria and include loss of erectile power and an inability to engage in sexual intercourse. These symptoms cause stress for the Veteran and creates a strain in his marriage. However, there is no indication that the disability affects average industrial impairment beyond that contemplated by the assigned rating criteria. Accordingly, the Board has determined that the rating criteria are adequate. The criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Because erectile dysfunction is not shown to manifest the symptomatology required for a higher rating under the rating schedule, and VA is obligated to only apply the applicable rating schedule to a disability rating claim, the claim for a compensable rating for an erectile dysfunction is denied. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

As the preponderance of the evidence is against the increased rating claim denied above, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

An initial compensable evaluation for an erectile dysfunction is denied. 



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs