Citation Nr: 1514164 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 11-23 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to increased ratings for service-connected bilateral hearing loss (currently noncompensable prior to November 28, 2011, and rated at 10 percent from that date). 2. Entitlement to a compensable rating for service-connected erectile dysfunction. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1966 to February 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Atlanta, Georgia Department of Veteran Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for diabetes mellitus with erectile dysfunction and bilateral hearing loss. At the time, both erectile dysfunction and bilateral hearing loss were rated at 0 percent. During the pendency of this appeal, the Agency of Original Jurisdiction (AOJ) increased the rating for bilateral hearing loss to 10 percent from November 28, 2011; that issue has been amended to reflect consideration of "staged" ratings. In addition, the RO subsequently began rating erectile dysfunction as part of the service-connected diabetes. The Board finds that the question as to this issue remains the same, however: whether a compensable rating is warranted for the erectile dysfunction. The Board notes that the rating decision on appeal also adjudicated a number of other matters. However, the Veteran limited his notice of disagreement to the issues listed above. In addition, although the Veteran requested a hearing before the Board in his substantive appeal, he subsequently withdrew that request by a January 2015 correspondence. The Board is cognizant that a significant amount of evidence has been associated with the claims file since the last adjudication of the issues on appeal in a May 2012 supplemental statement of the case. This evidence was associated due to development related to additional claims for compensation by the Veteran. The below decision only adjudicates upon the merits the issue on appeal regarding erectile dysfunction. The evidence associated since May 2012 includes VA and private medical records as well as VA examinations that evaluate diabetes. Although this evidence makes reference to the Veteran's erectile dysfunction, this evidence does not indicate that there are other symptoms of this disability such as related penis deformity. The evidence related to erectile dysfunction was already of file prior to May 2012. After careful review, the Board finds that the new evidence is cumulative and redundant of the evidence previously of record. Based on this conclusion, the Board finds that a remand to allow the AOJ to have initial consideration of this evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2014). The issue of increased ratings for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At no point has the Veteran's erectile dysfunction been shown to be productive of penis deformity with loss of erectile power. CONCLUSION OF LAW A higher rating for erectile dysfunction is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.115b, Diagnostic Code (Code) 7522 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Regarding the Veteran's claim seeking an increased rating for erectile dysfunction, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. Where, as here, the appeal is from the initial rating granted with service connection, the statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). By correspondence dated in March 2008, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates. In addition, the Veteran's pertinent postservice treatment records have been secured. VA examinations have been conducted in conjunction with this appeal in January 2009 and November 2011. Together, the reports of these examinations describe the Veteran's erectile dysfunction in sufficient detail to allow for application of the relevant rating criteria. The Veteran has not asserted that the medical evidence of record is inadequate and the Board cannot find any basis on which to find these examinations inadequate. As noted in the Introduction, the Board acknowledges that, since the most recent adjudication of this matter by the AOJ in a May 2012 supplemental statement of the case (SSOC), additional evidence has been submitted, and he has not waived initial consideration of such evidence by the AOJ. As noted, this evidence is cumulative and redundant of that previously of record. The Board does note that this evidence includes a September 2014 VA genitourinary examination report. However, as the Veteran refused a physical examination of his penis at the time, that report only includes discussion of the Veteran's general complaint of erectile dysfunction, which was previously of record. Consequently, VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App, 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. There is no specific diagnostic code for erectile dysfunction. Instead, it is compensated by special monthly compensation (SMC) for loss of use of a creative organ (which the Veteran currently receives). When there is associated deformity of the penis, such disability is rated under Code 7522. That Code provides only for a 20 percent rating for penis deformity with loss of erectile power. 38 C.F.R. § 4.115(b). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On January 2009 VA examination, the Veteran reported that he was unable to achieve and maintain an erection. At the time he reported treatment of his impotence by oral medication. A physical examination of the Veteran's penis was normal. On November 2011 VA examination, the Veteran reported erectile dysfunction that is constant and makes vaginal penetration impossible. He denied undergoing any treatment for his erectile dysfunction at the time. On physical examination, the Veteran's penis was normal. The examiner indicated that the Veteran had no ability to achieve an erection sufficient for penetration and ejaculation, with or without medication. Based on a review of the record, the Board finds nothing which suggests that the Veteran's penis has, at any point, exhibited physical deformity in addition to loss of erectile power. Notably, the Veteran himself has never alleged any deformity and the argument set forth in his substantive appeal focuses solely on loss of erectile power and inability to achieve vaginal penetration. Therefore, under Code 7522, a higher 20 percent rating is not warranted. Although the Veteran is separately rated for voiding dysfunction, this disability is rated as secondary to the Veteran's diabetes. Neither the Veteran nor the medical evidence of record indicate that this is part of the erectile dysfunction disability. Although the Rating Schedule directs consideration of voiding dysfunction when there has been removal of part of the penis, here, as noted, physical examination has shown the penis to be normal; instead, as noted, the voiding dysfunction is rated based on a disability due to the service-connected diabetes. See 38 C.F.R. § 4.115b, Codes 7520-7521. As such, the Board finds that the issue of a rating based on voiding dysfunction is not for consideration as this time. In addition, although one the November 2011 VA examination showed abnormality of the testes, there is no indication that this part of the service-connected erectile dysfunction and, as such, consideration of this abnormality is not in appellate status. The Board has considered whether referral of this matter to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b) is indicated. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). It is not alleged that the Veteran's erectile dysfunction produces any symptoms other than loss of erectile power, or that any symptoms are not contemplated by the rating schedule. Here, regulations specifically consideration this disability and provide Special Monthly Compensation based on the disability. Therefore, the schedular criteria are adequate for rating the disability on appeal, and referral for extraschedular consideration is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule does not apply, and the appeal seeking a higher rating for erectile dysfunction must be denied. ORDER The appeal seeking a compensable rating for erectile dysfunction is denied. REMAND Regarding his claim seeking increased rating for his bilateral hearing loss, the Board finds that additional development is needed prior to an adjudication of the matter on the merits. Notably, the Veteran was most recently provided an audiological examination in November 2011. As that examination report is almost four years old, the Board finds that a contemporaneous examination is needed to accurately assess the current severity of the Veteran's hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain updated records of all VA treatment the Veteran has received for his bilateral hearing loss. 2. Then, arrange for the Veteran to be examined by a VA audiologist to determine the current severity of his bilateral hearing loss disability. Based on a review of the entire record and puretone audiometric testing with Maryland CNC speech discrimination testing, the examiner should note all pertinent features and findings needed to apply the relevant rating criteria. Specifically, the examiner should note all results of puretone audiometric testing, with puretone average thresholds and Maryland CNC speech discrimination scores (in percentages) for both ears, as well as any functional impairment reported. Any medical opinions offered must include a complete rationale. 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an opportunity to respond before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs