Citation Nr: 1335471 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-25 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable disability rating for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The record raises the issue of entitlement to service connection or a separate rating for atrophy of the testicles. Some atrophy of the testicles was noted on recent examination, but there was no opinion as to whether this was a result of the service connected prostate surgery. This matter is referred to the RO for appropriate action. FINDING OF FACT Erectile dysfunction is manifested by impotency without visible deformity of the penis, and the Veteran is currently in receipt of special monthly compensation based on loss of use of a creative organ. CONCLUSION OF LAW The criteria for an initial compensable rating for erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.31, 4.115b, Diagnostic Code 7522 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), 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) (2013). 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). 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, in a March 2011 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The case was last adjudicated in August 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, private medical records, VA treatment records, the report of VA examination, and statements of the Veteran. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran 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 notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess/Hartman, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board has reviewed all 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran contends that his service-connected erectile dysfunction warrants an initial compensable rating. In July 2010 the Veteran submitted a claim for service connection for prostate cancer. Service connection for prostate cancer and entitlement to special monthly compensation based on loss of use of a creative organ, as secondary to prostate cancer, were granted in a March 2011 rating decision. In a June 2011 rating decision, the RO granted service connection for erectile dysfunction with a noncompensable (0%) rating, effective October 1, 2010. The Veteran's wife submitted a statement in August 2010 indicating that the Veteran had experienced erectile dysfunction for the past 4 to 5 years and that he was currently taking medication for this disorder. Private medical records show that the Veteran underwent a robotic-assisted laparoscopic radical prostatectomy on October 1, 2010. The Veteran's private physician has submitted a November 2011 letter stating that after the surgery the Veteran required penile rehabilitation, including medication and vacuum erection device. In an August 2011 letter, the Veteran's physician stated that while the Veteran had mild problems with erections before the surgery, his erections became significantly worse after the surgery. In April 2011 the Veteran underwent a VA genitourinary examination with a VA examiner who reviewed the medical records and provided an in-person examination of the Veteran. The Veteran reported that prior to his surgery he had difficulty achieving and maintaining an erection and used medication which was 50 percent effective. Since the surgery, he stated that his disorder had become much worse and that medication was ineffective. On examination, the examiner noted normal bladder, anus, rectal walls, urethra, perineal sensation, and penis. The testicles were noted to be half of normal size. The examiner found that erectile dysfunction had no significant effects on occupational functioning, and the only effect on daily activity was regarding spousal relationships. The examiner opined that the Veteran's current erectile dysfunction was caused by or a result of this service-connected prostate cancer and surgery. Analysis At the outset, the Board notes that the Veteran has already been awarded special monthly compensation for loss of use of a creative organ in a March 2011 rating decision. Accordingly, the only remaining question in relation to his erectile dysfunction is whether a compensable rating is warranted under the rating schedule. The rating schedule does not provide a diagnostic code for rating erectile dysfunction (as the term applies in the instant case, i.e., the inability to maintain an erection). However, a compensable evaluation is available for penile deformity under Diagnostic Code 7522, which provides for a 20 percent rating when both deformity and loss of erectile power are present. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Having only one or the other is insufficient. Here, lay statements from the Veteran, medical treatment records, the April 2011 VA examination report, and letters from the Veteran's physician all show that the Veteran has loss of erectile power. However, a penile deformity has not been shown in any of the medical evidence of record, nor has it been alleged by the Veteran. Accordingly, a compensable rating under Diagnostic Code 7522 is not warranted. 38 C.F.R. §§ 4.31, 4.115b, Diagnostic Code 7522. Accordingly, there is absolutely no evidence of record demonstrating that the Veteran's erectile dysfunction is manifested by impotency with visible deformity of the penis. As such, the Veteran is not entitled to an initial compensable rating under Diagnostic Code 7522. The Board again notes that the Veteran is already compensated for his primary symptoms through the receipt of special monthly compensation based on loss of use of a creative organ. The Board has also considered whether a compensable rating is warranted under any alternative rating codes. As removal of the glans or half or more of the penis has not been shown, a compensable rating under alternative provisions is not warranted. 38 C.F.R. § 4.115b, Diagnostic Codes 7520, 7521 (2013). As noted in the introduction, the issue of entitlement to benefits for testicular atrophy has been raised for initial RO review. That finding does not currently provide a basis for a rating to be assigned. Based on the foregoing, the Board finds that the preponderance of the evidence is against a compensable initial rating for service-connected erectile dysfunction. Since the evidence is not in equipoise, the provisions of 38 U.S.C.A. § 5107(b) regarding resolution of reasonable doubt are not applicable to warrant a compensable rating. The Board has also considered whether the Veteran's erectile dysfunction 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 extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); 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 Veteran's complaints pertaining to erectile dysfunction are fully contemplated by the relevant diagnostic criteria. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial compensable disability rating for erectile dysfunction is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs