Citation Nr: 1325743 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 05-03 502A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 20 percent for erectile dysfunction (claimed as penile deformity), to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from November 1945 to July 1946, and November 1950 to September 1951. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO denied the Veteran's claim for a compensable rating for erectile dysfunction. The Veteran filed a notice of disagreement (NOD) in September 2007, and the RO issued a statement of the case (SOC) in March 2008. The Veteran filed a substantive appeal (via VA Form 9, Appeal to Board of Veterans' Appeals ) in May 2008. By rating decision in September 2008, the RO granted a 20 percent rating for erectile dysfunction, effective March 9, 2007, the date of the Veteran's claim for an increased rating. Although the RO awarded the highest schedular rating available during the pendency of this appeal, inasmuch as a higher rating may be available for erectile dysfunction on an extra-schedular basis, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating on an extra-schedular basis remains viable on appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2009, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence and for consideration of a higher rating on an extra-schedular basis. After completing the requested development, the AMC continued to deny the claim (as reflected in a January 2010 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In April 2010, the Board denied the claim on an extraschedular basis. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims, after which the parties entered a Joint Motion for Remand. The Court issued an order in April 2010 vacating the Board's decision and remanding the matter for action in accordance with the Joint Motion. The Board, in August 2011, remanded the issue for further evidentiary development, after which the Veteran submitted a request to provide hearing testimony. Thus, the Board's most recent remand, in December 2012, was in order to afford the Veteran his requested hearing. The Veteran provided hearing testimony via videoconference before the undersigned in June 2012. A transcript of those hearing proceedings is of record. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The Veteran, via is representative, submitted a statement into the record from his private urologist in June 2013. This record suggests that he has a back disability due to his active service, with residual neurogenic bladder. The representative also submitted a mental health treatment note of January 2013, which the representative suggested was being submitted "regarding pending appeal." The Board notes that the Veteran is not service connected for a back disorder. He is service connected for a mental disorder. Thus, these statements are considered claims for service connection for a back disorder with associated neurogenic bladder, and for an increased rating for the service-connected mental disorder. These claims have not yet been adjudicated by the RO; therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. Pertinent to the March 2007 claim for increase, the Veteran's erectile dysfunction has not been shown to present so exceptional or unusual a disability picture as to render impractical the application of the regular schedular standards for rating the disability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for erectile dysfunction, including on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), are not met. 38 U.S.C.A. § 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In an April 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The March 2008 SOC and a June 2008 letter set forth the rating criteria for evaluating erectile dysfunction, and an October 2009 letter set forth the provisions of 38 C.F.R. § 3.321(b). After issuance of the March 2008 SOC and the June 2008 and October 2009 letters, and opportunity for the Veteran to respond, the January 2010 and May 2012 SSOCs reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the report of May 2007 and January 2012 VA examinations. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran, and by his representative, on his behalf, as well as the Veteran's June 2013 Board videoconference hearing testimony. The Board finds that no additional RO action to further develop the record is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO and AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, the Veteran has been awarded the maximum schedular rating available for erectile dysfunction, 20 percent. Special monthly compensation is also available for loss of use of a creative organ; however, the Veteran has been receiving special monthly compensation since 1954. Thus, the only remaining issue is whether a rating in excess of 20 percent is warranted on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). 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 this 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 rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, 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 extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). According to Diagnostic Code 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. See 38 C.F.R. § 4.115b (2012). The Board notes that the Joint Motion of the Parties in April 2010 specifically noted the need for the Board to consider whether separate ratings are warranted under separate rating criteria for any manifestations of erectile dysfunction. In this case, the Veteran was afforded a VA examination in May 2007. His main complaint was erectile dysfunction. There were hardly visible scars in the inguinal regions and the penile shaft. The glans penis had a widened opening by about 1.5 centimeters. Otherwise, there was no abnormality. VA outpatient records, especially those dating from December 2009 through October 2011, show that the Veteran was treated for urinary tract infections (UTI). A December 2009 note shows that the UTI experienced at that time was likely due to internal foley placement. A July 2010 note documents signs of obstructive voiding. In August 2011, the Veteran again experienced UTI with painful urination and significant urinary retention. The Veteran was admitted to the hospital in August 2011 and again in September 2011 for a period of six weeks. UTI is noted upon admission in September 2011. More recently, the Veteran was afforded another VA examination to determine what residuals of erectile dysfunction exist. At the time of his January 2012 VA examination, the Veteran reported no change since the May 2007 examination. The examiner noted that the penis was not examined per the Veteran's request. The examiner also noted that in addition to erectile dysfunction, the Veteran has been followed since 1999 for elevated PSA levels, as well as superficial bladder cancer in June 2011. The examiner also documented the Veteran's urinary frequency, with notation of urination during the day every two to three hours, as well as nighttime awakening to void five or more times per evening. Obstructive voiding, manifested by hesitancy, slow or weak stream, and decreased force of stream, was also noted. The VA examiner also reported the Veteran's chronic UTIs and specifically noted that they are due to the Veteran's enlarged prostate and not due to the Veteran's erectile dysfunction. In March 2011 and again in June 2013, the Veteran's private urologist submitted a statement also discussing the Veteran's chronic UTIs. This physician reported that the UTIs are associated with a neurogenic bladder condition that was caused by a back disability. There is no indication in this report that the UTIs are associated with the Veteran's erectile dysfunction. Based upon this review of the record, the Board finds that schedular criteria are adequate to rate the Veteran's erectile dysfunction. The record clearly shows that the Veteran cannot obtain an erection, has some hardly visible scars, and the glans penis has a widened opening by about 1.5 centimeters. The Board must presume that this condition has maintained at this severity, as the Veteran did not allow his penis to be examined at the more recent VA examination. The rating schedule fully contemplates the described symptomatology (loss of erectile power and deformity). Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not 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). Even if the rating schedule did not contemplate the Veteran's symptomatology, a higher rating on an extra-schedular basis would still not be warranted. The Veteran's treatment records show no hospitalizations as a result of his erectile dysfunction. The VA outpatient records do show several hospitalizations, most of which note UTI, but again, there is no finding in the record that the UTIs are associated with the erectile dysfunction. There is simply no showing that any hospitalization was due to erectile dysfunction. While the Veteran is not presently working, he did work part-time during this appeal. When asked how his erectile dysfunction affected his work as a cashier at a golf course, the Veteran reported that there was no impact on his position; "just going to the bathroom." The Veteran quit his job because he was angry with the golf pro. The 2007 examiner opined that there is no effect of the condition on the Veteran's usual occupation and activities of daily living, other than periodic urination. The evidence in this case is against a finding that the Veteran's erectile dysfunction has resulted in marked interference with employment or frequent hospitalization. Thus, even if the rating schedule did not adequately contemplate the Veteran's symptomatology, referral for extra-schedular rating would not be warranted. Moreover, the Board recognizes the Joint Motion's notation that consideration must be given as to whether separate ratings are warranted under any other diagnostic code. Also, the Board understands the Veteran's contention, which was raised at the June 2013 hearing, that his chronic UTIs are part of the same disease process as erectile dysfunction. However, the VA examiner in January 2012, clearly opined that the Veteran's UTI and voiding dysfunction are not associated with erectile dysfunction and are, rather, associated with the Veteran's history of enlarged prostate and bladder cancer. Moreover, the Veteran's own private urologist suggested that the UTIs are associated with a neurogenic bladder caused by a back condition. The UTIs and voiding dysfunction are simply not shown to be related to the erectile dysfunction, therefore, the Board will not undertake consideration of separate ratings for these symptoms. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's erectile dysfunction, pursuant to Hart, and that the claim for a higher rating, on an extra-schedular basis, must be denied. Moreover, the Board finds that there is no basis for a separate rating for any other manifestation of erectile dysfunction. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 20 percent for erectile dysfunction (claimed as penile deformity), including on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs