Citation Nr: 1334282 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-49 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable rating for erectile dysfunction (ED). 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM). 3. Entitlement to service connection for an acquired psychiatric disability including posttraumatic stress disorder (PTSD). 4. Entitlement to a higher level of special monthly compensation for loss of use of a creative organ due to ED. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2009, July 2009, and June 2010 decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2012, the Veteran testified at a Board hearing before the undersigned via video conference from the RO. FINDINGS OF FACT 1. The Veteran's ED is not manifested by a penile deformity. 2. The Veteran takes oral medication and follows a restricted diet for his DM, but he does not require insulin. 3. On May 9, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal as to the issue of entitlement to service connection for an acquired psychiatric disability including PTSD, is requested. 4. The Veteran is in receipt of the maximum schedular rate for SMC on the basis of loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for ED have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.31, 4.115b, Diagnostic Code 7522 (2013). 2. The criteria for a rating in excess of 20 percent for DM have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.119, Diagnostic Code 7913 (2013). 3. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for an acquired psychiatric disability including PTSD, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). 4. The claim seeking a higher rate of SMC on the basis of loss of use of a creative organ lacks legal merit. 38 U.S.C.A. §§ 1114(k), 1155 (West 2002 & Supp. 2012), 38 C.F.R. § 3.350(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in November 2006, October 2007, March 2009, March 2010, and May 2010. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. With regards to the claim for a higher initial rating for ED, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date 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 the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). However, the Veteran's notices as to this issue encompassed both the service connection and rating elements. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for higher ratings. The Veteran also volunteered his treatment history and the VLJ elicited this information. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Regarding the claim seeking a higher rating of SMC on the basis of loss of use of a creative organ, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, the Veteran is receiving the maximum rate available for loss of use of a creative organ, and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations. The VCAA is therefore inapplicable and need not be considered with regard to that claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). In summary, the Board finds that "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." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, 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. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that 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. In this case, there has not been a material change in the disability levels of the Veteran's ED or DM and uniform ratings are warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). ED In a January 2009 rating decision, service connection was granted for ED as a complication of DM. A noncompensable rating was assigned from November 2007. This rating decision also granted special monthly compensation based on loss of use of a creative organ, due to erectile dysfunction. See 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). The Veteran appealed the assignment of a noncompensable rating for ED. The Veteran claims that his ED is more severe than represented by the current noncompensable rating. In November 2006, the Veteran was afforded a VA examination which indicated that he had ED, as he had claimed. He reported to the examiner that he was able to have a partial erection and was successful less than 25 percent of the time with intercourse. During those times, he was able to ejaculate. Although the VA examiner did not conclude that the Veteran's ED was related to his DM, his treating VA physician provided an August 2007 opinion indicating that the ED was a complication of his DM. In November 2007 and April 2010, the Veteran was afforded VA examinations which also concluded that the ED was due at least in part to the DM. An April 2010 genitourinary examination also indicated that the Veteran had ED which the Veteran related had progressively worsened. His testicles were noted to be 1/2 of normal size. The other physical findings regarding the Veteran's genital area were normal. In a July 2010 letter, it was noted by a VA nurse that the Veteran had ED which was a complication of his DM. At his Board hearing, the Veteran testified that he could not take medications for his ED due to his service-connected heart disorder. He indicated that he had complete dysfunction and that he should be compensated for this disability dating back to 2005. In support of his statements, he submitted an April 2012 notation from his VA provider who indicated that the Veteran's ED was irreversible and was not responsive to treatment. The Veteran currently has a noncompensable rating under Diagnostic Code 7522. Under this Diagnostic Code, a 20 percent rating is warranted where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Where the schedule does not provide a zero percent rating for a diagnostic code, one will be assigned where the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran is competent in his report that his erectile dysfunction is currently complete. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, the record does not show nor does he contend that he has any penile deformity. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. However, the Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a noncompensable rating. See 38 C.F.R. § 4.7. There is no evidence that the Veteran has a penile deformity, which would warrant a higher evaluation. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Absent evidence of penile deformity, a compensable rating is not warranted under Diagnostic Code 7522. The Veteran made statements regarding his testicles, indicating that one had appeared to disappear at one point. The Veteran is not service-connected for testicle disability. Nevertheless, even considering these contentions, physical examination does show the presence of two testicles. Although they are smaller than normal, they are not shown to be completely atrophied such that a compensable rating would be warranted if they were service-connected. See Diagnostic Code 7523. In light of the above, the Board finds that the Veteran is not entitled to a compensable rating for his service-connected ED at any point during the appeal period. DM In a January 2006 rating decision, service connection was granted for DM and a 20 percent rating was assigned effective May 2004. In conjunction with the claim for an increased rating, in November 2007, the Veteran was afforded a VA examination. At that time, it was noted that the Veteran was taking oral medication for his DM, Glyburide, as well as a restrictive diet. The Veteran reported that his DM was not particularly well-controlled. The examiner noted that the Veteran did not have any episodes of hypoglycemic reactions or ketoacidosis. The Veteran was diagnosed with non-insulin dependent DM. Various complications were noted, identified as diabetic retinopathy, microalbuminuria, peripheral neuropathy, and ED. VA outpatient records also documented that the Veteran was prescribed Glyburide and placed on a restrictive diet. In April and May 2010, the Veteran was afforded VA examinations. The April 2010 DM examination indicated that the Veteran was on the same dose of Glyburide. The examiner indicated that there was no history of DM-related hospitalizations or surgery, pancreatic trauma, DM-related neoplasm, hypoglycemia reactions, or of ketoacidosis. The examiner stated that the Veteran was on a restricted diet, but his activities were not restricted. The Veteran's complications of DM were also evaluated. In May 2012, the Veteran was afforded a Board hearing. At that time, he related that he was 20 percent rated for DM and had been at that rate since he was granted service connection. He also indicated that his DM has been worse the whole time. He said that just because he did not take insulin, that did not mean that his DM was not bad. He related that was following his physician's orders, keeping to the diet and taking oral medication. He also stated that his activities were basically restricted. Thereafter, VA outpatient records reflected continued monitoring of the Veteran's DM and treatment for his complications of DM. However, the Veteran has not been placed on insulin, nor does he assert such. At the outset, the Board notes that the Veteran is service-connected for several complications due to DM: peripheral neuropathy of the right and left lower extremities, diabetic retinopathy, coronary artery disease and arteriosclerotic heart disease, peripheral vascular disease, and ED. They have been separately rated and are not under appeal. He has a current combined rating of 100 percent. DM is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for DM requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is warranted for DM requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if evaluated separately. DM requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, warrants a 100 percent evaluation. 38 C.F.R. § 4.119, Diagnostic Code 7913. Compensable complications of DM are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation; noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 and Note 1. The record shows that the Veteran follows a restricted diet and takes oral medication. He also contends that he has restriction of activities. However, the Veteran's DM does not require insulin. In order for a higher rating to be warranted, the use of insulin is required. The Veteran's DM is controlled through diet and oral hypoglycemic agent. As such, his DM clearly does not meet the criteria for a higher rating and has not met the criteria at any point during the appeal period. Conclusion for Ratings In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a compensable rating for ED and against a rating in excess of 20 percent for DM at any time during the appeal period. In considering the claim for a 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). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must 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 Veteran'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." 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's ED and DM disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability. Although the Veteran has been hospitalized and has industrial impairment, such matters are related to the many complications of his DM, all separately rated, and not addressed herein, as indicated above. Therefore, referral for consideration of an extraschedular rating is not warranted. Withdrawn Issue Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has withdrawn his appeal as to the issue of entitlement to service connection for an acquired psychiatric disability including PTSD, and, hence, there remain no allegations of errors of fact or law for appellate consideration as to that matter. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed. SMC In a January 2009 rating decision, service connection was granted for ED as a complication of service-connected diabetes mellitus. A noncompensable rating was assigned from November 2007. This rating decision also granted special monthly compensation based on loss of use of a creative organ, due to erectile dysfunction. See 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's Rating Schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114(k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k), 38 C.F.R. § 3.350(a). The rate of SMC compensation shall be $96.00 per month, adjusted annually, for each such loss, independent of any other awarded compensation. 38 U.S.C.A. § 1114(k). The Veteran is currently in receipt of SMC for loss of use of a creative organ based upon the grant of service connection for erectile dysfunction. The statute and applicable regulation do not provide for a higher rate of SMC for loss of use of a creative organ. 38 U.S.C.A. § 1114(k). SMC rates are determined by statute and are not subject to the Board's discretion and the Board is specifically prohibited from granting benefits that are not authorized by law. See 38 U.S.C.A. § 7104(c); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (relying on OPM v. Richmond, 496 U.S. 414, 424 (1990)). As the disposition of this case is based on law and not the facts of this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a compensable rating for ED is denied. Entitlement to a rating in excess of 20 percent for DM is denied. Entitlement to service connection for an acquired psychiatric disability including PTSD, is dismissed. A higher rate of special monthly compensation on the basis of loss of use of a creative organ is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs