Citation Nr: 1307407	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  10-42 230	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to an initial compensable disability rating for erectile dysfunction.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. R. dela Rosa, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1967 to January 1969.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).   


FINDING OF FACT

The Veteran's service-connected erectile dysfunction is manifested by loss of erectile power without evidence of a deformity of the penis. 


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for service-connected erectile dysfunction are not met during the appellate period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.20, 4.27, 4.31, 4.115b, Diagnostic Code 7522 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist
	
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, VCAA notice was provided in a letter dated in October 2008, regarding the evidence needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  

In any event, the appeal arises from the initial award of service connection.  In Dingess, the Court held that in cases in which 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.  Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, VA's duty to notify in this case has been satisfied.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA medical records, private treatment records, and VA examination reports. 

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran bears the burden of presenting and supporting his claim for benefits.  38 U.S.C.A. § 5107(a) (West 2002).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b) (West 2002).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  

The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection for erectile dysfunction was granted by the February 2009 rating decision, with a noncompensable rating assigned August 29, 2008.  This disability was rated by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7522, for penile deformity.  See 38 C.F.R. §§ 4.20, 4.27.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).  In this case, the Board finds no other applicable rating criteria, and the Veteran has not requested evaluation under any alternative rating criteria.  The Board notes that the Veteran is separately rated for other residuals of his prostatectomy, to include urinary symptoms, and those symptoms cannot be considered when evaluating his erectile dysfunction claim.  38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).

Pursuant to Diagnostic Code 7522, a 20 percent disability rating is warranted for deformity of the penis with loss of erectile power.  There is no other alternative criterion which warrants assignment of a compensable disability rating for erectile dysfunction, and a 20 percent disability rating is the maximum schedular rating provided.  38 C.F.R. § 4.115b, Diagnostic Code 7522.  In every instance where the rating schedule does not provide a zero percent, or non-compensable, evaluation, a zero percent evaluation shall be assigned where the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.  A footnote to Diagnostic Code 7522 indicates that review for entitlement to SMC under § 3.350 should be taken.  Such review was taken, and the Veteran was awarded SMC for loss of use of creative organ at the time of the February 2009 rating decision on appeal.  

The Veteran's VA treatment records and private treatment records are silent for any indication that he complained of, or presented with, a deformity of the penis. 

On VA examination in October 2008, the Veteran had erectile dysfunction, which the examiner related to his radical retropubic prostatectomy with bilateral lymph node resection.  During the examination, the Veteran reported that he was unable to achieve morning erections since his surgery.  The Veteran indicated that he used medication, which allowed for intercourse.  The examiner noted there was no history of retrograde ejaculation.  A physical examination revealed no penile deformity, scarring, or skin lesions.  

During the February 2010 VA examination, the Veteran reported that he used a vacuum erection device, which he indicated was very unpleasant for him and his wife.  He also indicated that he did not have a great response to Cialis or Levitra, or to MUSE penile suppositories.  Additionally, the Veteran had tried penile injections.  He indicated that he was not able to achieve penetration with ejaculation, morning erections, any erectile function, or desire.  Physical examination revealed no penis deformity.  

In an October 2010 statement, the Veteran indicated that prior to his surgery, he had a normal and satisfying sex life with his wife.  Post surgery, the Veteran indicated that his libido has remained unchecked but he was unable to satisfy himself or his wife of 39 years.  He indicated that prescribed oral medication had adverse medical effects, the penile suppositories caused pain and did not allow for an adequate erection for penetration, and the penile pump caused adverse physical pain and no lasting erection for penetration.  Further, the Veteran acknowledged no outward physical deformity but alleged internal deformity as he stated that his pelvic nerves were severed or injured during the surgery for prostate cancer.  

Given the evidence of record, the Board finds the preponderance of the evidence is against an initial compensable disability rating for the Veteran's service-connected erectile dysfunction.  Under Diagnostic Code 7522, a compensable rating for impotence requires both the loss of erectile power and a penis deformity.  Although there is evidence of record to show loss of erectile power in this case, there is no evidence of a penis deformity.  The Veteran alleges that pelvic nerves were severed or damaged and that this resulted in an internal deformity causing the lack of proper function.  However, he concedes that the appearance of his penis is normal.  The Veteran's opinion that there must be an internal deformity because his penis no longer functions properly is not a competent medical opinion.  While the Veteran is competent to describe the external appearance of his penis and his erectile function, he is not competent to testify as to the internal appearance of his penis and state of the nerves therein.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  

Moreover, the Veteran's argument centers around the impairment of erectile function caused by the surgery.  However, the impairment of function is considered in Diagnostic Code 7522, but that Code also requires penile deformity to warrant a compensable evaluation.  The evidence does not show such deformity, and the Veteran concedes the appearance of his penis is normal.  Thus, a higher rating pursuant to the rating schedule is simply not warranted.  

In sum, the RO provided the Veteran with two examinations, during which the examiners did not note the presence of any physical penis deformity.  While the Board is sympathetic to the Veteran's condition, the criteria for an initial compensable disability rating are not met.  Accordingly, the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  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.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for an additional symptom than currently shown by the evidence.  As noted above, Diagnostic Code 7522 contemplates loss of erectile power; however, such must be accompanied by penile deformity to warrant a compensable rating, which is simply not shown by the evidence.  As noted above, the Veteran is already in receipt of special monthly compensation due to the loss of use of a creative organ under 38 C.F.R. § 3.350(a).  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 

In reaching the above 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 instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).



ORDER

An initial compensable disability rating for service-connected erectile dysfunction is denied. 


52

____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs