Citation Nr: 1609555 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 05-27 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable evaluation for erectile dysfunction. 2. Entitlement to an initial rating for major depressive disorder in excess of 30 percent prior to April 15, 2013, and in excess of 70 percent thereafter. (The issues of entitlement to increased evaluations for lumbar spine and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), will be the subjects of a separate decision). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active duty service from November 1977 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for erectile dysfunction with an initial noncompensable rating, effective in June 2007. The Veteran timely perfected an appeal of that issue. This case was initially before the Board in March 2012, when it was remanded for a Board hearing. The Veteran testified at a Board hearing before the undersigned in May 2013. The erectile dysfunction issue does not overlap with the issues addressed in the Veteran's June 2007 hearing with a Veterans Law Judge, as the sole issue addressed at the May 2013 hearing was the erectile dysfunction issue. Hence, a single-judge decision as to the erectile dysfunction issue is appropriate in this case. In June 2014, the Board remanded the case to the Appeals Management Center (AMC), Washington, DC, for additional development. The Board finds that the Veteran initiated an appeal from the initial rating of 30 percent assigned upon the award of service connection for major depressive disorder in a February 2013 rating decision, thereby bringing this issue under the Board's jurisdiction. In April 2013, the AOJ received a VA Form 9 (substantive appeal) indicating that the Veteran was appealing from a Supplemental Statement of the Case (SSOC) and was having panic attacks three times a day. The February 2013 SSOC had addressed entitlement to a TDIU, but not the rating for the newly service-connected mental health disability. Thereafter, in January 2014, the Veteran requested an increased rating for major depressive disorder, and identified ongoing VA treatment since 2007. The AOJ interpreted the April 2013 statement as a claim for increased rating and issued a rating decision in September 2014, which granted a 70 percent rating, effective April 15, 2013. Nevertheless, the Board finds that the Veteran's statements received within one year after the initial rating decision indicated a dispute with the initial rating that was assigned for major depressive disorder and an intent to appeal; thus, a timely notice of disagreement was received. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2015) (concerning requirements to initiate an appeal, including via an informal notice of disagreement); cf. 38 C.F.R. § 20.201 (amended effective March 24, 2015, to require a formal notice of disagreement on the specified VA form where that form is provided in connection with the decision). Additional pertinent evidence was also submitted, and no SOC has been provided. In addition to his paper claims file, the Veteran also has Virtual and VBMS VA paperless claims files, which are highly secured electronic repositories that are used to store and review documents involved in the claims process. The Board has reviewed the contents of both files while reviewing this appeal. FINDING OF FACT The Veteran's testes are normal except for right testicular pain on palpation; the Veteran retains erectile power. CONCLUSION OF LAW The criteria for an initial compensable rating for erectile dysfunction are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.10, 4.14, 4.115b, Diagnostic Code (DC) 7522 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned in this case, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. The record reflects that VA has complied with the notice requirements of 38 U.S.C.A. §§ 5103A and 7105. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's VA treatment records, and the records related to his receipt of Social Security benefits are in the claims file. As noted in the Introduction, the Board remanded the case in June 2014 for additional development, to include an examination. The examination was conducted as directed and is adequate. The Veteran does not assert that there are additional records to obtain. Indeed, while the case was on remand, he asked that his case be returned to the Board. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O'Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Discussion The RO evaluated the Veteran's disability under DC 7522. See 38 C.F.R. § 4.115b. Those rating criteria provide for a 20-percent rating where there is deformity of the penis with loss of erectile power. Otherwise, the rating is 0 percent. The February 2008 rating decision reflects that the initial noncompensable rating was assigned on the basis of the September 2007 VA examination. The report of that examination reflects that the examiner noted that the Veteran's penis was normal. This was again the case at the August 2012 examination, at which time the examiner noted that the Veteran's penis was normal on examination. At the May 2013 hearing, however, the Veteran stated that he was unable to get a lasting erection even with medication, and that he declined a penile prosthesis due to potential infection complications. He did, however, indicate that he was able to achieve an erection, though having sex caused him pain. He additionally indicated that his penis had both a left and a right curve when erect, which he stated was a deformity of the penis. The June 2014 remand specifically directed that the examiner assess whether the Veteran had a deformity of the penis. The May 2015 examination report reflects that the examiner conducted a review of the claims file as part of the examination and fully considered the Veteran's history, including his reported history at the examination. The Veteran denied that any parts of his penis had been removed, and the examiner noted that the entire penis was intact. As concerns whether the Veteran manifested with a deformity of the penis, the examiner noted as follows: Concerning the question does the Veteran have a penile deformity, it is noted that on the exam today his penis is in a flaccid state and no deformity is noted. One could only speculate as to any deformity of his penis in the erect state since it is not clinically feasible to observe the Veteran's penis in the erect state. There is no indication in the claims file that the Veteran has ever been asked to photograph his penis while in an erect state. Nonetheless, state of the evidence convinces the Board that no valid purpose would be gained from another remand. Further, the Board finds that a lay person is capable of identifying whether a penis is curved. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Whether the Veteran's account is credible is another matter entirely. However, even if the Veteran is correct that there is penile deformity, the rating criteria also require loss of erectile power. VA outpatient records dated in May 2006, November 2009, October 2012, August 2013, and April 2015 note that the Veteran presented for treatment and reported he had engaged in sexual intercourse. The Veteran has steadfastly denied the use of a pump or other device, and he refused a surgical implant. Thus, the Board finds that the preponderance of the evidence is against a finding of loss of erectile power. Hence, the Veteran's erectile dysfunction more nearly approximates a noncompensable rating. 38 C.F.R. §§ 4.1, 4.10, 4.31, 4.115b, DC 7522. In as much as the RO did not rate the Veteran's disability analogously, see 38 C.F.R. § 4.20, the Board finds no factual basis for assessing whether a higher rating is appropriate under the criteria for voiding dysfunction. See 38 C.F.R. § 4.115a. Further, the examiner specifically noted that the Veteran's voiding dysfunction is not causally connected to his erectile dysfunction. The medical evidence of record also shows that there is no occupational impairment due to the erectile dysfunction. See 38 C.F.R. §§ 3.340, 4.16. As noted earlier, the Veteran is entitled to a staged rating where indicated by the evidence. The Board finds that there is no factual basis for a staged rating, as the evidence shows the Veteran's erectile dysfunction has manifested at the 0-percent rate for the entire rating period. 38 C.F.R. § 4.31. As discussed above, the Veteran's erectile dysfunction has been evaluated under the General Rating Schedule, which means the Veteran's disability is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration. Further, the evidence of record shows no impact on employment by the erectile dysfunction. See 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt. as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial compensable evaluation for erectile dysfunction is denied. REMAND As discussed in the Introduction, the Veteran submitted a timely notice of disagreement from the initial 30 percent rating that was assigned for major depressive disorder. Although this rating was subsequently increased for a portion of the appeal period, the issue remains on appeal because this was not a full grant of the benefit sought. The Board has no discretion; and a remand is required for the AOJ to provide a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide a statement of the case addressing the issue of entitlement to an initial rating for major depressive disorder in excess of 30 percent prior to April 15, 2013, and in excess of 70 percent thereafter. This issue should not be certified to the Board unless a timely substantive appeal is received. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims that are remanded by the Board 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). ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs