Citation Nr: 1335356	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-11 703	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial compensable evaluation for erectile dysfunction.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from August 193 to April 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for erectile dysfunction as associated with service-connected diabetes mellitus, and assigned a noncompensable evaluation for that disability, effective March 10, 2008; the Veteran was additionally assigned special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ, effective March 10, 2008.  The Veteran timely appealed his assigned noncompensable evaluation for erectile dysfunction.


FINDINGS OF FACT

The evidence of records demonstrates that the Veteran's penis is not deformed, his glans are not removed, nor has half or more of his penis been removed.


CONCLUSION OF LAW

The criteria establishing an initial compensable evaluation for erectile dysfunction have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Codes 7520-22 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's increased evaluation claim for erectile dysfunction arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims 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 Veteran 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).

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 (West 2002); 38 C.F.R. § 4.1 (2013).  Separate diagnostic codes identify the various disabilities.  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 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); 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 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the claimant 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).

Currently, the Veteran's erectile dysfunction is assigned a noncompensable evaluation under 38 C.F.R. § 4.115b, Diagnostic Code 7522.  Under Diagnostic Code 7522, a 20 percent evaluation is assigned for a penile deformity with loss of erectile power.  See 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2013).

The Board additionally notes that other potentially applicable Diagnostic Codes include Diagnostic Codes 7520 and 7521, which assesses the Veteran's symptomatology as a voiding dysfunction under 38 C.F.R. § 4.115a, Voiding Dysfunction criteria, if the Veteran's has half or more of his penis removed or his glans removed, respectively.  See 38 C.F.R. § 4.115b, Diagnostic Codes 7520, 7521 (2013).

On appeal, the Veteran avers that he should be assigned at least a 10 percent evaluation for his erectile dysfunction because of his "loss of erectile power/use of [his] creative organ."  See September 2009 Notice of Disagreement.  The Veteran, however, tacitly admits in his March 2010 Substantive Appeal, VA Form 9, that he "realizes that deformity needs to exist in order to warrant a 20 percent disabling, however, that not being the case, [he] feel[s]that the stress relate to being intimate, along with my loss of erectile power definitely warrants a 10 percent [evaluation].  Since [his] early 30's, [he has] had to deal with the anxiety and/or embarrassment of never knowing whether or not a sexual encounter with my loved one would end positively. ([His] medication only work[ed] some of the time.)"  

The Veteran additionally submitted with his Notice of Disagreement a VA eligibility print-out, which indicated that one of his rated disabilities was "deformity of the penis," rated as noncompensable-he essentially argues in his Notice of Disagreement that this is evidence that he has a penile deformity.  Several of the Veteran's VA treatment records document a service-connected disabilities list and past medical history that lists these same service-connected disabilities, including "deformity of the penis."

Turning to the evidence of record, Dr. E.S.'s private medical records from 1987 through 1999 demonstrate that the Veteran has been diagnosed with erectile dysfunction since approximately 1998, and has been some type of oral medication-most recently Viagra-for that condition.  The Veteran's penis is routinely documented as normal throughout those records; there is no documentation in those records of any removal of his penis or part thereof, his glans, nor any penile deformity.

The Veteran underwent a VA examination of his diabetes mellitus and erectile dysfunction in June 2005.  During that examination, the Veteran was noted as having erectile dysfunction since 2000; the examiner opined that such was most likely related to his diabetes mellitus.  However, it does not appear that any examination of the Veteran's penis occurred at that time.  

In a March 10, 2008 statement, the Veteran indicated that he wished to be service connected for erectile dysfunction.  He stated that he has "required [erectile dysfunction] medication since at least 2000" and stated that he believed his erectile dysfunction was related to his diabetes mellitus.

In an April 2008 statement, the Veteran's spouse indicated that over the last 4 years the Veteran's erectile dysfunction had worsened, even though he was taking prescription medication for that condition.  She noted that "[a]s a couple very much in love, it is frustrating to be unable to express our love as spontaneously or frequently as we would both prefer. . . . [Mentally,] it is a stressful situation for [the Veteran], having always been a very physical person, to feel that he has to rely on medication to aid in an important part of his life and relationship."

The Board has reviewed the Veteran's VA treatment records which have been associated with the claims file, including the Virtual VA efolder, through June 2013.  Those records generally demonstrate continual treatment with Viagra throughout the appeal period.  There is no evidence in those records that the Veteran's penis is deformed, or that he has had either his glans or a part of his penis removed.

In April 2008 the Veteran underwent a VA examination for his diabetes mellitus.  In that examination, it was noted that the Veteran had erectile dysfunction, which he treated with oral medication.  It was also noted as most likely being related to his diabetes mellitus.  It does not appear, however, that a physical examination of the Veteran's penis was performed at that time.  Regardless, however, there is no evidence in that examination which demonstrates that the Veteran's glans or any part of his penis had been removed, nor that his penis was at all deformed.

The Veteran underwent another VA examination for his erectile dysfunction in April 2012.  The examiner noted that the Veteran has been diagnosed with erectile dysfunction since 1999.  During the examination, the Veteran stated that his erectile dysfunction had worsened since his last examination in April 2008.  He stated that without medication be cannot get an erection, ejaculate, or achieve vaginal penetration.  With medication, however, he has full function-including erection, ejaculation, and vaginal penetration-60 percent of the time.  He noted that the Veteran was taking 100 milligrams (mg) of Viagra as needed.  

On examination, the Veteran was noted as not having an orchiectomy, a voiding dysfunction, or a urinary tract/kidney infection.  His erectile dysfunction was noted as being related to his diabetes mellitus.  The examiner noted that the Veteran was able to achieve an erection sufficient for penetration and ejaculation with medication, but was not without medication.  He did not have retrograde ejaculation, epididymitis, epididymo-orchitis, or prostatitis.  The Veteran's penis, testes, epididymis and prostate were not examined at the Veteran's request.  It was noted that the Veteran did not have any surgical intervention with respect to his reproductive system.  No biopsy or other imaging scans were performed at that time.  His erectile dysfunction was not shown to have any impact on his ability to work.  

Finally, the Veteran stated in a July 2012 that he

disagree[d] with the 0 percent rating due to the fact that there is no deformity along with the loss of power and use.  I didn't "decline" a penile examination [in April 2012]-the doctor explained that the rating is based on deformity along with loss of power, at which point I told [the doctor] that my penis was not deformed and [the doctor] said that there was no reason to examine it.  My appeal is based on the fact that the erectile dysfunction is directly related to my service-connected diabetes mellitus.  I am unable to achieve an erection without medication and on many occasions even with medication it doesn't help.  Furthermore, part of my service-related psychological issues and anxiety, I believe are caused by this dysfunction.  I have been dealing with this issue for almost 20 years now, and I have had too many embarrassing episodes to count.  I think that a 10 percent rating is more than fair. . . . 

Based on the foregoing evidence, the Board finds that a compensable evaluation for the Veteran's erectile dysfunction is not warranted.  In order for the Board to assign a compensable evaluation in this case, there must be evidence of one of three things: (a) a penile deformity; (b) removal of half or more of the Veteran's penis; or, (c) removal of the Veteran's glans.

The Board notes that none of the evidence of record indicates that the Veteran has had either his glans or a part of his penis removed, nor does it demonstrate a penile deformity.  The Veteran's private medical records consistently document a normal penis.  The Veteran additionally tacitly admits in the July 2012 statement that he does not have a penile deformity.  He has not submitted any evidence of or stated that he has had any surgical intervention with regards to his reproductive system at any time.

Insofar as the Veteran has indicated that the eligibility list he has submitted, or that the evidence in the VA treatment records which lists "deformity of the penis" as a service-connected disability, is evidence that he, in fact, has a penile deformity, the Board does not find this persuasive.  The eligibility list demonstrates that he is being assigned a 0 percent disability rating under the Rating Schedule for his erectile dysfunction.  This eligibility list and an administrative listing in the clinical records of his service-connected disabilities do not demonstrate clinical findings of a penile deformity, or removal of his glans or any part of his penis.  

The Board reiterates that there is no evidence of any penile deformity, or removal of the Veteran's glans or his penis or any part thereof in the record.

Finally, insofar as the Veteran argues that he should be given a 10 percent evaluation for his psychological distress related to his erectile dysfunction and for his loss of use.  The Board notes that, first, the Veteran is already being compensated for his psychological distress associated with his diabetes and associated complications.  The Veteran is currently service connected for a depressive disorder associated with diabetes mellitus; the Veteran's erectile dysfunction is a result of his diabetes.  Therefore, the Board finds that his psychological issues associated with his erectile dysfunction has already been addressed under the depressive disorder evaluation, and that any assignment of an additional evaluation would be pyramiding in this case.  See 38 C.F.R. § 4.14 (2013); see also Mittleider v. West, 11 Vet. App. 181 (1998).

Moreover, the Board notes that the Veteran is already being compensated for his loss of use due to his special monthly compensation award for loss of use of a creative organ under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a).  

As for the Veteran's loss of power, the Board notes that while the Veteran may have loss of penile power, however, such is only compensable with a penile deformity under the Rating Schedule.  Again, the Board reiterates that there is no evidence of a penile deformity in this case.

Accordingly, the Board finds that a compensable evaluation for erectile dysfunction must be denied at this time on the basis of the evidence of record in this case.  See 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Codes 7520-22.

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2013).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is adequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected erectile dysfunction, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  There is no suggestion of frequent hospitalization or marked employment impairment due to this disability.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. 

Finally, the Board notes that the Veteran has already been awarded a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective May 16, 2011.  Additionally, there is no suggestion in the record that erectile dysfunction had any material effect on his employability prior to that date.  Further consideration of entitlement to a total disability rating based on individual unemployability is not warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

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 evaluation for erectile dysfunction is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs