Citation Nr: 1602493 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 08-34 179 ) DATE ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a compensable initial disability rating for erectile dysfunction. 2. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS). 3. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative joint disease L5-S1 (hereinafter referred to as a back disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to February 1999. This appeal is before the Board of Veterans' Appeals (Board) from May 2007 and April 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The May 2007 rating decision granted service connection for erectile dysfunction and assigned an initial noncompensable evaluation, effective September 27, 2006. It also granted entitlement to special monthly compensation (SMC) based on loss of use of creative organ from September 27, 2006. In August 2012, the Board remanded the case for a VA examination. The Veteran was provided with VA examinations in November 2014 as well as in March 2015. As such, there has been substantial compliance with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)); Stegall v. West, 11 Vet. App. 268, 271 (1998). The April 2010 rating decision continued an evaluation of 10 percent disabling of the Veteran's IBS. The Veteran appeals for a higher evaluation. The issue of entitlement to an increased rating for the Veteran's back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has no deformity of the penis. 2. The Veteran's IBS is productive of diarrhea, or alternating diarrhea and constipation, but not more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.20, 4.31, 4.115b, Diagnostic Code 7522 (2015). 2. The criteria for a rating in excess of 10 percent for IBS have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7319 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regards to the Veteran's claim for a higher initial evaluation of his erectile dysfunction, the Veteran received sufficient Veterans Claims Assistance Act of 2000 (VCAA) notice prior to the grant of service connection and assignment of an initial evaluation and effective date, thereby satisfying the VA's duty to notify in this case. Dingess, supra. With regards to the Veteran's claim for an increased rating of his IBS, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The information regarding the claim for increase that is required by Vazquez was provided in the February 2010 letter. The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent several VA examinations during the appeal period in November 2014 and March 2015 for his erectile dysfunction. He also underwent a VA examination in January 2011 for his IBS. The Board finds that the VA examinations are adequate, because the examinations included a review of the Veteran's medical records, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the increased rating claim. II. Higher Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 (2015). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After 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 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where the schedular criteria does not provide for a noncompensable rating, such a rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Erectile Dysfunction The Veteran appeals the grant of entitlement to service connection for erectile dysfunction at a noncompensable initial rating, effective September 27, 2006. The Veteran's erectile dysfunction is rated under Diagnostic Code (DC) 7522, and is thus rated by analogy under the criteria for deformity of the penis. See 38 C.F.R. §§ 4.20, 4.27. Under DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. In every instance where the Rating Schedule does not provide a percentage evaluation for a diagnostic code, a zero percent evaluation is assigned when the requirements for a compensable rating of a diagnostic code are not shown. 38 C.F.R. § 4.31. A note to DC 7522 indicates that entitlement to SMC under 38 C.F.R. § 3.350 (2015) should be reviewed. 38 C.F.R. § 4.115b, DC 7522. In this regard, the Veteran has received SMC based on loss of use of a creative organ pursuant to 38 C.F.R. § 3.350(a) (2015). The Veteran contends that he is unable to achieve an erection and that medication had worked occasionally in the past but is currently not working at all. See VBMS, 3/26/15 C&P Exam. However, the Board finds that a compensable rating for the Veteran's erectile dysfunction is not warranted. While the record reflects erectile dysfunction, the weight of the evidence reflects no deformity of the penis. At a June 2004 VA examination for other conditions, a physical examination revealed "Phallus within normal limits." A January 2011 VA examination report for other conditions reflects that a genital examination was performed, per the Veteran's request. The examiner noted that the penis exam was normal with no deformity, and diagnosed the Veteran with erectile dysfunction. The examiner also noted that there is no effect of the Veteran's impotence on his usual occupation, and that the effect on daily activity is decreased ability for physical intimacy. A November 2014 VA examination reflected a 2012 diagnosis of erectile dysfunction. The Veteran reported his current symptomatology, and the examiner conducted a physical examination, which revealed a normal penis. See VBMS, 3/4/15 VAMC Other Output/Reports (VAMC San Diego OPTRs (Feb'10-Mar'15)), p. 114-16. VA treatment records reflect the Veteran's erectile dysfunction as part of his medical history. A February 2015 treatment record reflects that the Veteran's penis was normal in appearance. See id., p. 5. In a March 2015 VA examination, the examiner conducted an in-person examination and reviewed the claims file as well as the VBMS file. The examiner noted the Veteran's 2012 diagnosis of erectile dysfunction and the Veteran's reported medical history, including current symptomatology. The examiner stated that a physical examination was not performed per the Veteran's request, but that the Veteran reported "normal anatomy with no penile deformity or abnormality." Thus, the objective medical evidence reflects no deformity of the penis. While the Veteran has asserted that he warrants a higher rating for his erectile dysfunction, he has presented no medical evidence or other objective, competent evidence of penile deformity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the evidence of record explicitly and repeatedly states that objective examination of the penis revealed normal findings. As the objective medical evidence, which is the most probative evidence in this case as to whether the Veteran has any actual deformity of the penis, reveals that he does not have any, a compensable rating under DC 7522 is not warranted. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's erectile dysfunction, but finds that no other diagnostic code provides a basis for a higher rating. A compensable rating is assignable for atrophy of both testes (see 38 C.F.R. § 4.115b, DC 7523 (2015)). However, the evidence does not suggest that the Veteran has any such atrophy. Accordingly, a compensable rating for erectile dysfunction is not warranted, and there is no basis for staged rating pursuant to Hart. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53-56. B. IBS The Veteran is currently evaluated at 10 percent for his IBS, effective March 1, 1999. The Veteran's IBS is rated under DC 7319 for irritable colon syndrome. Under DC 7319, severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, warrants a 10 percent rating. Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.114, DC 7319. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. VA treatment records from August 2008 to December 2010 reflect complaints and treatment for IBS. In August 2008, the Veteran complained of worsening IBS and gastrointestinal discomfort. He reported episodes of midabdominal discomfort two to three times a month, described as "crampy [and] pain," which was associated most often with diarrheal bowel movements that improved symptoms, although sometimes he did experience constipation. He stated that taking simethicone and diclocylcomine seemed to help with his "IBS flares." See VBMS, 7/1/09 VA Treatment Records (VAMC San Diego), p. 21. He sought treatment again in June 2009 for stomach problems, stating that he had sought treatment the previous week for diarrhea and stomach growling, and had experienced bowel movements up to four times a day. However, he reported that his symptoms had improved from the previous week and that he was currently without abdominal pain, although he had two watery bowel movements that morning. See id., p. 1. In November 2010, the Veteran complained of stomach pain at night for 20 years, which was dull and worse at night. Additionally, he reported watery diarrhea for 30 years, but no nausea, vomiting, or weight loss. He was diagnosed with periumbilical pain, reflecting chronic and a history of IBS, with no weight loss and chronic diarrhea. See Virtual VA, 1/9/12 CAPRI, p. 33-35. At a December 2010 VA gastroenterology consultation, the Veteran complained of abdominal pain and diarrhea and constipation. He reported having a couple of episodes a month with some left-sided abdominal discomfort and two to three days of loose stool. He denied blood in the stool and felt the pain was often fleeting. He also reported a few days of hard stool and constipation. The physician noted that the Veteran had a past medical history significant for IBS and found that the Veteran seemed mostly to have diarrhea but did have issues with constipation and hard stools occasionally. The Veteran's IBS had been well-controlled with psyllium, but the Veteran reported not taking it regularly anymore. See id., p. 31-32. At a January 2011 VA examination, the Veteran reported a diagnosis of IBS and that that the condition, which was not due to injury or trauma, had existed for 25 years. He stated that his IBS did not affect his body weight; that it caused diarrhea, alternating diarrhea and constipation, and abdominal pain and stress; and that he did not have nausea, vomiting, or chronic constipation. He specifically reported that the symptoms occurred weekly or bi-weekly with abdominal pain that occurred more than two-thirds of the year. He described the abdominal pain having the characteristic of distress and cramps and as occurring intermittently, as often as two weeks or less, with each occurrence lasting different lengths of time. The Veteran reported that he did not experience any overall functional impairment from his IBS. As such, the examiner confirmed the diagnosis of IBS, which he described as an active condition. VA treatment records from March 2011 to February 2015 reflect the Veteran's symptomatology for his IBS. A March 2011 physical examination of the abdomen revealed it to be soft, nontender, and nondistended with normoactive bowel sounds, and the Veteran reported no nausea, vomiting, or abdominal pain. The record reflected an ultrasound for periumbilical pain, which revealed normal findings. See Virtual VA, 1/9/12 CAPRI, p. 23-24. In April 2011, the Veteran complained of mostly diarrhea, but reported to have occasional issues with constipation and hard stools. He noted that he still had diarrhea more at night, which would awaken him, and that he would have diarrhea when his stomach got cold. The physician noted that the Veteran's IBS had been well-controlled previously with psyllium. See id., p. 4-7. In January 2013, the Veteran complained of an upset stomach and reported that he sometimes felt bloated. However, he reported no abdominal pain. See Virtual VA, 12/4/13 CAPRI, p. 244, 247. In December 2014, the physician noted that the Veteran did not have abdominal pain or change in bowel habits. See Virtual VA, 9/28/15 CAPRI, p. 121. In January 2015, the Veteran complained of diarrhea four to five times a day, which was resolved three days prior. He also reported passing flatus that was malodorous. The physician noted infrequent stools. See id., p. 92-93. In February 2015, the Veteran denied having abdominal pain. See id., p. 72. Based on a careful review of all of the evidence, the Board finds that a rating in excess of 10 percent for the Veteran's IBS is not warranted for any portion of the appeal period. Although the evidence shows that the Veteran continues to have diarrhea as well as constipation, the evidence does not demonstrate that the Veteran has "more or less constant abdominal distress." 38 C.F.R. 4.114, DC 7319. In August 2008, he reported episodes of midabdominal discomfort two to three times a month but that bowel movements most often improved symptoms. He also stated that medication helped with his "IBS flares." In June 2009, he reported that his symptoms had improved from the previous week and that he was currently without abdominal pain. In November 2010, although he reported stomach pain at night for 20 years, he did not specify whether this pain was constant at any point in time. Additionally, in December 2010, he stated that he had a couple of episodes a month with some abdominal discomfort and that the pain was often fleeting. Although the Veteran reported abdominal pain and stress at his January 2011 VA examination, he specifically stated that the symptoms occurred weekly or bi-weekly, that abdominal pain occurred more than two-thirds of the year, and that the abdominal pain occurred intermittently. He also denied having abdominal pain in March 2011, January 2013, December 2014, and February 2015. The Board also notes that the Veteran's IBS is noted to have been well-controlled with psyllium but that the Veteran stopped taking it regularly. Based on the fact that the Veteran described his abdominal pain as intermittent or fleeting, that his symptoms improved or resolved at times, that he went through periods of time with no abdominal pain, and that his IBS had been well-controlled with medication, the Board finds that the evidence does not support a finding that the Veteran suffers from more or less constant abdominal distress. The Veteran contends that the VA examination is stale due to the passage of time, and that the case should be remanded to obtain a new examination. However, the Board notes that the duty to obtain a new examination is triggered when the available evidence of record indicates that the previous examination no longer reflects the current state of the Veteran's disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). There is no duty to remand simply because of the passage of time since an otherwise adequate VA examination was conducted. Id. Here, the Veteran has not asserted that his condition has changed since the last VA examination in January 2011, and there is no other indication in the records that his disability has worsened. Furthermore, there is detailed medical evidence since January 2011 to as recent as February 2015, as summarized above, regarding the Veteran's relevant subjective symptoms as they occur. As such, the Board finds it unnecessary to remand for a new VA examination. The Board also finds that a staged rating is not appropriate, as there is no evidence of more or less constant abdominal distress at any point during the appeal. As such, an evaluation in excess of 10 percent is not warranted for any portion of the period on appeal. Accordingly, the Board finds that the weight of the evidence is against a rating in excess of 10 percent for the Veteran's IBS. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53-56. C. Extraschedular Consideration Finally, the Board has considered whether an extraschedular evaluation is warranted for the issues on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321(b)(1) (2015). 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 claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 111. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected disabilities, which are recited in detail above, are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Thus, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). ORDER Entitlement to a compensable initial rating for erectile dysfunction is denied. Entitlement to a disability rating in excess of 10 percent for IBS is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. Regarding the claim for a back disability, the Veteran contends that the January 2011 VA examination is stale due to the passage of time, and that the case should be remanded to obtain a new examination. The Board notes that the duty to obtain a new examination is triggered when the available evidence of record indicates that the previous examination no longer reflects the current state of the Veteran's disability. See Palczewski, 21 Vet. App. at 181-83; VAOPGCPREC 11-95 (1995). Additionally, reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a). In this case, as compared with the Veteran's IBS claim, the Veteran specifically complained of back and shoulder pain in January 2013, which he claimed had worsened since his last radiographic evaluation two years ago. See Virtual VA, 12/4/13 CAPRI, p. 246. Also, in February 2015, the Veteran reported worsening flank or back pain. See VBMS, 3/4/15 VA Treatment Records (VAMC San Diego OPTRs (Feb'10-Mar'15)), p. 15. Furthermore, no objective testing for the Veteran's back disability has been done since the January 2011 VA examination. As such, there are no medical records reflecting the Veteran's current severity of his back disability which the Board may consider in order to evaluate his back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional medical evidence relevant to the Veteran's claims that may have come into existence in the interim. All records and responses received should be associated with the claims file. 2. The AOJ shall schedule the Veteran for an appropriate VA examination to ascertain the current level of severity of the Veteran's service-connected lumbosacral strain with degenerative joint disease L5-S1. 3. After completing the above and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and give the Veteran an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs