Citation Nr: 1338681 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-01 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating in excess of zero percent for service-connected erectile dysfunction. ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran served on active military duty from June 1964 to May 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the San Juan, Puerto Rico Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. The Board notes that the Veteran did not submit a substantive appeal within 60 days of the November 2010 statement of the case. However, because the substantive appeal was submitted within approximately 60 days, the Board waives the issue of timeliness of the substantive appeal. FINDING OF FACT The Veteran's erectile dysfunction has been manifested by loss of erectile power, but not by evidence of a penile deformity. CONCLUSION OF LAW The Veteran's erectile dysfunction has not met the criteria for a compensable rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to notify and assist the Veteran. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The issue adjudicated in this decision stems from an appeal of the initial rating assigned following an award of service connection. Under these circumstances, Veterans Claims Assistance Act notice is not required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) ("[O]nce a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."); see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the Veteran has not raised any allegations of prejudice regarding any notification deficiencies. Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that where a claim has been substantiated, the Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements such as the disability rating and effective date). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The Veteran has not argued otherwise. The Veteran has not reported, nor does the record indicate, that there are any outstanding records relevant to the claim adjudicated in this decision. The Veteran has also been afforded a VA examination in connection with this claim. The Board finds that the examination is adequate in that it is based on an evaluation of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the examination includes sufficient information upon which to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The Veteran has not argued otherwise. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Increased Initial Rating for Erectile Dysfunction By way of history, in February 2009, the RO granted entitlement to service connection for erectile dysfunction. A noncompensable rating was awarded, effective November 2008, pursuant to 38 C.F.R. § 4.115(b), Diagnostic Code 7522. In addition, special monthly compensation based on loss of use of a creative organ under 38 U.S.C.A. § 1114(k) (West 2002) and 38 C.F.R. § 3.350(a) (2013) was also granted, effective November 2008. The noncompensable rating has been in effect since that time. The Veteran claims entitlement to a greater rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, the Veteran appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Under Diagnostic Code 7522, a 20 percent rating is assigned when there is evidence of deformity of the penis with loss of erectile power. 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. Statements from the Veteran, his wife, and treating providers reflect that the Veteran has had erectile dysfunction for many years. In addition, the January 2009 VA examiner diagnosed erectile dysfunction secondary to medications for schizophrenia. The examiner recorded a normal penis examination and noted no other abnormalities of the penis. The Board finds that the Veteran is not entitled to a rating in excess of zero percent for erectile dysfunction. In this regard, the Board notes that while it is clearly established that the Veteran has erectile dysfunction as a result of medications for his schizophrenia, the evidence does not show, nor has the Veteran asserted, that he has any sort of penis deformity. In fact, his penis was found to be normal upon physical examination. Therefore, a higher disability rating for erectile dysfunction is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7522. 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. Extraschedular Consideration Based Upon Exceptional Circumstances The Board has considered the potential application of other provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, applicable scheduler rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's condition is not manifested by a level of severity and symptomatology not contemplated by the rating criteria. See 38 C.F.R. § 4.71(a)(2013). Hence, referral for consideration of an extraschedular evaluation is not in order. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, however, this doctrine is not for application. 38 U.S.C.A. § 5107. ORDER A rating in excess of zero percent for service-connected erectile dysfunction is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs