Citation Nr: 1323235 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-32 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating, in excess of 30 percent, for traumatic amputation of the penis with functioning stump and impotence. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active military service from January 1967 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in March 2013. A transcript of the hearing is associated with the claims file. The Board has reviewed the Veteran's entire claims file, to include documents of record in his virtual VA electronic claims file. The Board notes that no additional evidence has been added to the record since the supplemental statement of the case (SSOC) dated in August 2012. FINDING OF FACT The Veteran's traumatic amputation of the penis with functioning stump and impotence has not resulted in the requirement of wearing an appliance or absorbent materials which must be changed 2 or more times daily. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for traumatic amputation of the penis with functioning stump and impotence have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in May 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The Court (CAVC) has held that the VCAA notice, if provided concerning a claim of entitlement to service connection for a particular disability, also should include information concerning the disability rating and effective date elements of the claim, which are "downstream" elements once service connection is granted. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This claim did not arise in that context, however, instead, from the very outset as a claim for a higher, i.e., increased rating for an already established service-connected disability. And specifically with regards to the notice requirements for increased-rating claims, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower Court's (CAVC's) previous decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that "generic" notice in response to a claim for an increased rating is all that is required, and that VA does not have to apprise the Veteran of alternative diagnostic codes or request evidence of how the disability at issue impacts daily life. In any event, a May 2007 letter provided Dingess notice. That letter was sent prior to the initial adjudication of this claim in the April 2008 rating decision at issue in this appeal. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment records and VA treatment records are associated with the claims folder. The Veteran was afforded VA examinations relevant to the claim in November 2006, March 2008, January 2009, June 2010, and July 2012. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2012). The Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full history provided by the Veteran and thorough examinations. Additionally, the examiners provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of entitlement to an increased rating for traumatic amputation of penis with functioning stump and impotence has been met. 38 C.F.R. § 3.159(c) (4) (2012). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Veteran is currently service-connected for traumatic amputation of the penis with functioning stump and impotence with a 30 percent rating under 38 C.F.R. § 4.115b, Diagnostic Code 7520. The Board notes that the Veteran is also separately rated for urethral stricture with a 40 percent rating under 38 C.F.R. § 4.115b, Diagnostic Code 7518, but that claim is not on appeal and will therefore not be addressed in this decision. The Veteran has also been granted special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for his erectile dysfunction. There are several diagnostic codes that are applicable to the Veteran's claim. Diagnostic Code 7520 provides a 30 percent rating for removal of half or more of the penis. Diagnostic Code 7521 provides a 20 percent rating for removal of the glans of the penis. Diagnostic Code 7522 provides a 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b (2012). Where these criteria are not met, a noncompensable rating must be assigned. 38 C.F.R. § 4.31 (2012). Additionally, for Diagnostic Codes 7520 and 7521, the disability may also be rated under voiding dysfunction. With regard to voiding dysfunction, VA regulations provide that the disability is to be rated as a particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than 2 times per day is to be rated as 20 percent disabling. A 40 percent rating is warranted when such impairment requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. The Veteran was afforded a VA examination in November 2006 in association with his claim for total disability for individual unemployability (TDIU). The Veteran had no complaints of urinary frequency, hesitancy, dysuria, or incontinence. The examiner noted the amputation of the penis performed in the 1970s as well as another surgery to implant a rib in that area. Examination of the penis revealed that the distal portion had been amputated and the remaining tissue was deformed. The right testicle was not visible and the left testicle was normal to palpation. The Veteran was diagnosed with penis amputation with subsequent erectile dysfunction. The Veteran was afforded a VA genitourinary examination in March 2008. The Veteran reported he had erectile dysfunction since his penile implant, but was still able to maintain an erection for some time. However, in 1994 after being diagnosed with diabetes, his condition worsened and he was prescribed Viagra, which was unsuccessful. He further noted that he had used a catheter dilation of the ureter in the past, but was not using it at the time. He denied any urinary frequency, hesitancy, dysuria, or incontinence. He further denied any malignancy, UTI, nephrolithiasis, acute nephrites, or recent hospitalizations for drainage or invasive procedures. Finally he denied any other disease affecting sexual function. Upon examination it was noted that the distal portion of the Veteran's penis was amputated with the remaining tissue deformed. His right testicle was not visible and his left was normal to palpation. The Veteran was afforded a VA general medical examination in January 2009. The Veteran stated that he had no real complaints with regard to his penile amputation, but he did note that if he ever had dribble or could not urinate properly he would catheterize himself. The Veteran was again afforded a VA general medical examination in June 2010. The examiner noted that the penis was deformed and misshapen due to a previous skin graft to the distal penis. Testicles were noted to be normal size but in abnormal position with right testicle high-riding. The Veteran's epididymis and spermatic cords were normal. Finally, the Veteran was afforded a VA examination for male reproductive system conditions in July 2012. The Veteran was diagnosed with traumatic amputation of penis with functioning stump and impotence and it was noted that the Veteran had not had to self catheterize or dilitate himself for the past 4-5 years or so and he had not had a UTI in that time either. The Veteran reported that he had an inability to obtain and maintain an erection sufficient enough for ejaculation despite having tried injections, medications, Viagra, and suppositories. The examiner noted that the Veteran did not have a voiding dysfunction. The Veteran had erectile dysfunction and was not able to achieve an erection sufficient for penetration and ejaculation with or without medication. The Veteran's penis was noted to be abnormal with half or more of the penis removed. With consideration of the above, the Board finds that the Veteran is not entitled to a higher rating than the currently assigned 30 percent for his traumatic amputation of the penis with functioning stump and impotence. In order to be assigned a higher rating of 40 percent, the Veteran would have to exhibit a voiding dysfunction, that is urine leakage, frequency, or obstructive voiding that required wearing absorbent materials that would need to be changed 2-4 times daily. There is no evidence that the Veteran has urine leakage, frequency, or obstructive voiding and he does not require the use of absorbent materials. See 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7520. The Board has reviewed the remaining evidence of record for evidence of other functional impairment which might warrant a higher or separate rating(s). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). There is no indication that the Veteran is entitled to a higher rating under any other diagnostic code. The Board acknowledges the Veteran's statements regarding the severity of his disability and his belief that he should be rated higher. The Board notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, the Board places significantly more weight on the objective clinical findings reported on examination than the Veteran's statements as he is not shown to have the requisite training to determine the severity level of his service-connected disability. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.115b with respect to determining the severity of his service-connected disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). For the reasons set forth above, the Board finds that the evidence of record fails to support the assignment of a rating in excess of 30 percent for the Veteran's service-connected traumatic amputation of penis with functioning stump and impotence. In evaluating the Veteran's claims for higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA 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). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran'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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability of traumatic amputation of penis with functioning stump and impotence with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board acknowledges the Veteran's contentions that his current rating does not take into consideration the psychological hardship created by his inability to have sexual intercourse. While the diagnostic code currently assigned his disability does not address these concerns, the Board notes that service connection is in effect for adjustment disorder with mixed disturbance of conduct and emotion associated with traumatic amputation of penis with functioning stump and impotence. This disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9499-9410. An extraschedular consideration of the Veteran's claim for traumatic amputation of the penis with functioning stump and impotence due to psychological hardship would amount to pyramiding and is therefore not allowed. Under the above circumstances, the Board finds that a preponderance of the evidence is against a higher rating than the one currently assigned. Additionally, the Board has considered the benefit of the doubt rule and determined that it is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ORDER An increased rating, in excess of 30 percent, for traumatic amputation of the penis with functioning stump and impotence is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs