Citation Nr: 1648196 Decision Date: 12/28/16 Archive Date: 01/06/17 DOCKET NO. 11-23 879A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable rating for restless leg syndrome (restless leg syndrome). 2. Entitlement to a compensable rating for erectile dysfunction. 3. Entitlement to increases in the ratings for hypertension (currently rated 0 percent prior to December 30, 2015, and 10 percent from that date). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1989 to January 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for restless leg syndrome, erectile dysfunction, and hypertension, each rated 0 percent, effective February 1, 2009. A February 2016 rating decision subsequently increased the rating for hypertension to 10 percent, effective December 30, 2015. The Veteran has not expressed satisfaction with the rating assigned for the "stages" on appeal. Therefore, the issue has been characterized to reflect that staged ratings are assigned for hypertension, and that this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Throughout, the medical evidence of record shows that the Veteran's restless leg syndrome is of a "mild" severity. 2. The Veteran's erectile dysfunction is shown to have been manifested by loss of erectile power, but not by deformity of the penis or any other functional limitation. 3. The Veteran's hypertension has been manifested by a history of diastolic pressure predominantly 100 or more requiring the use of continuous medication for control. CONCLUSIONS OF LAW 1. A compensable rating for restless leg syndrome is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.56, 4.73, Diagnostic Code (Code) 5312 (2016). 2. A compensable rating for erectile dysfunction (other than by virtue of an award of SMC) is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.31, 4.115b, Diagnostic Code (Code) 7522 (2016). 3. A 10 percent (but no higher) rating is warranted for hypertension. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.104, Code 7101 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Where, as here, service connection has been granted and initial disability ratings have been assigned, statutory notice under 38 U.S.C.A. § 5103(a) and regulatory notice under 38 C.F.R. § 3.159(b)(1) have been fulfilled. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any case, a statement of the case issued in September 2011 properly provided notice on the downstream issues of increased initial ratings, and the Veteran has had ample opportunity to respond. Legal Criteria - General Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil 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. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Legal Criteria - Restless Leg Syndrome There is no diagnostic code dedicated to rating restless leg syndrome. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Given the Veteran's symptomatology, the RO has rated his disability due to restless leg syndrome by analogy to convulsive tics. See 38 C.F.R. § 4.114, Code 7346. Under Code 8103, mild convulsive tics are noncompensable, moderate convulsive tics are 10 percent disabling, and severe convulsive tics are evaluated as 30 percent disabling. The note to this rating code indicates that these characterizations are dependent upon the frequency and severity of the symptoms and muscle groups involved. See 38 C.F.R. § 4.124. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A rating note in 38 C.F.R. § 4.124a indicates that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, and disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Factual Background and Analysis - Restless Leg Syndrome On May 2009 VA genitourinary and peripheral neuropathy examination, the Veteran reported symptoms of aching, particularly in his thighs, during service. During the night, he would have to get up and walk around. He reported that his symptoms decreased slightly because of the sleeping pills he was taking. Although the examiner noted an underlying history of neuropathy, the Veteran distinguished his restless leg syndrome symptoms from his neuropathy. Specifically, he reported that the thigh pain associated with his restless leg syndrome is intermittent throughout the day and night, with weakness and fatigue to his lower extremities. He rated it as a seven out of 10 on a pain scale, with sitting or lying as precipitating factors. Conversely, his neuropathy symptoms are numbness and tingling in his feet on an intermittent basis. The examiner diagnosed restless leg syndrome by history. His private treatment records are silent for any complaints of, or treatment for, restless leg syndrome. On December 2015 VA central nervous system examination, the Veteran reported that his legs "jump" when he sits still and are worse at night. The examiner determined that there was no muscle weakness in the lower extremities. restless leg syndrome was diagnosed, and the examiner opined that the Veteran's restless leg syndrome, while active, does not impact his ability to work. Based on a review of the evidence of record, the Board finds that the Veteran's restless leg syndrome does not warrant a compensable rating as there is no demonstration of symptoms equivalent to a moderate convulsive tic. The severity of his symptoms in this earlier time period is best represented by the noncompensable "mild" criteria found in the Code. There is no medical evidence of record diagnosing his condition as "moderate" or "severe." His reported thigh pain with weakness and fatigue are all adequately considered by a "mild" distinction of the condition. Significantly, his treatment records are silent for any complaints of, or treatment for restless leg syndrome, and the only medical records that discuss the severity of his restless leg syndrome are the May 2009 and December 2015 VA examinations, neither of which classified his restless leg syndrome as moderate or severe. The Board has considered the Veteran's statements of record that a higher disability rating is warranted for his restless leg syndrome. However, the Board finds that the question of the severity of his restless leg syndrome is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that he alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings. Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the Board places great weight on this contemporaneous medical evidence, which does not avail the Veteran to a higher rating for a condition analogous to a "moderate" or "severe" compulsive tic. Furthermore, the Board finds that Code 8103 adequately rates the condition and the Veteran is not warranted a higher rating under a different Code. Legal Criteria - Erectile Dysfunction The Veteran's erectile dysfunction has been rated 0 percent since service connection was established effective February 2009. The Veteran has also been awarded SMC on account of loss of use of a creative organ under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a), effective in February 2009. Beyond being compensated by the award of SMC, erectile dysfunction may be rated under Code 7522, which provides for a 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Factual Background and Analysis - Erectile Dysfunction On May 2009 VA genitourinary and peripheral neuropathy examination, the Veteran reported increasing problems maintaining an erection during intercourse. He was subsequently placed on Viagra and reported tremendous improvement. He reported problems with fatigue on a continuous basis and weight loss of 15 pounds over the last year. The Veteran reported using Viagra at least once or twice a week and has a full erection; he is able to maintain an erection throughout intercourse. He denied any history of bent-nail deformity of the penis, Peyronie plague, discharge from the penis, or penile deformity. On examination, penile deformity, Peyronie plaque, and penile discharge were not noted. The diagnosis was erectile dysfunction. On June 2014 VA male reproductive system conditions examination, the examiner noted that diabetes was diagnosed in 2004 and erectile dysfunction was diagnosed in 2006. His treatment plan included Viagra since the Veteran is unable to achieve an erection sufficient for penetration and ejaculation without medication. On physical examination, his penis, testes, and epididymis were normal. The examiner opined that the Veteran's erectile dysfunction did not impact his ability to work. A review of other medical records in the record, such as VA outpatient records, found no indication (or suggestion) that the Veteran has a penile deformity. The examination findings and the Veteran's statements do not indicate or even suggest that the Veteran has ever had an obvious deformity of his penis. Therefore, a compensable schedular rating for erectile dysfunction is not warranted. See 38 C.F.R. §§ 4.31, 4.115b, Code 7522. Moreover, there are no other diagnostic criteria under which the Veteran's erectile dysfunction would be more appropriately evaluated. The Board is cognizant of the Veteran's claims that he is unable to achieve an erection and that he should be accorded appropriate compensation for his sexual dysfunction. While his disability is evaluated as 0 percent, the Veteran has been in receipt of SMC specifically for the loss of use of a creative organ since the effective date of service connection for erectile dysfunction. Thus, he is in fact receiving monthly compensation for erectile dysfunction impairment, and additional compensation is not warranted unless there is evidence to show deformity of the penis with loss of erectile power, as articulated above. For the foregoing reasons, the preponderance of the evidence is against an initial compensable rating for erectile dysfunction, there is no doubt to be resolved and the claim is denied. 38 C.F.R. § 5107(b). Legal Criteria - Hypertension Hypertensive vascular disease (hypertension and isolated systolic hypertension) warrants a 60 percent rating when diastolic pressure is predominantly 130 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or; systolic pressure predominantly 160 or more, or; as a minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continues medication. 38 C.F.R. § 4.104, Code 7101. The Court recently held that the criteria for compensable evaluations under Code 7101 contemplate two factual alternatives: (1) a veteran whose blood pressure is currently controlled by medication-i.e., whose blood pressure does not otherwise meet the criteria for a compensable evaluation-but who has a history of diastolic pressure predominantly 100 or more is entitled to the minimum compensation evaluation of 10 percent, and (2) a veteran whose blood pressure is currently elevated to varying degrees is entitled to evaluations ranging from 10 percent to 60 percent. McCarroll v. McDonald, No. 14-2345, 2016 WL 6575247, at *6 (Vet. App. Nov. 7, 2016). Factual Background and Analysis - Hypertension The Board notes that the Veteran's hypertension has been controlled by medications since before he filed his claim in March 2009 and that, since then, his blood pressure readings do not meet the criteria for a compensable evaluation as neither his diastolic nor systolic pressure are predominantly 100 or 160 or more, respectively. Specifically, on April 2009 VA general examination, the Veteran's blood pressure was recorded at 123/94 sitting, 131/93 supine, and 113/92 standing. While the Board notes that his private treatment records include blood pressure readings with higher systolic and diastolic pressure, they have not been predominantly 100 or 160 or more, respectively. On December 30, 2015, VA examination, it was noted that the Veteran's treatment plan included taking continuous medication for his hypertension and that he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. His blood pressure was recorded three separate times as follows: 160/100, 150/100, and 164/100. His average blood pressure reading was 160/100. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to his hypertension. The examiner opined that the Veteran's hypertension does not impact his ability to work. Based on this examination, a February 2016 rating decision increased the rating for hypertension to 10 percent, effective December 30, 2015 (date of examination). The Board notes that the Court clearly stated that a Veteran whose blood pressure is currently controlled by medication who has a history of diastolic pressure predominantly 100 or more can still meet the criteria for a compensable evaluation. The Veteran's service treatment records near the time he was placed on blood pressure medication show that his diastolic blood pressure readings meet or approximate 100. According to May 2002 service treatment records, his blood pressure readings were 144/94; 158/102; and 140/98, and in June 2002, they were 162/99; 144/94; 156/100; 162/100; and 142/90. As there is no evidence of record showing diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, a rating in excess of 10 percent is not warranted. Accordingly, and resolving any reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 3.102), the Board concludes that a compensable rating for hypertension is warranted throughout. Extraschedular Consideration and TDIU The Board has considered whether these matters should be referred for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b). In this case, however, referral for extraschedular consideration is not necessary because the schedular criteria for the Veteran's restless leg syndrome, erectile dysfunction, and hypertension contemplate the findings and associated functional impairment (such as the frequency, severity, and muscle group involved for restless leg syndrome; loss of erectile power and penile deformity for erectile dysfunction; and blood pressure readings for hypertension) shown and there is no impairment (either reported by the Veteran or indicated by the evidence of record) that is not encompassed by the schedular criteria; therefore, the schedular criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008) (setting forth criteria for when referral for extraschedular consideration is required). The Court has indicated that in claims for increased ratings, the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence does not indicate that the Veteran's disabilities have made him unable to secure or follow any substantially gainful occupation, and the Veteran has not alleged such; therefore, the record does not raise the issue of unemployability. ORDER The appeal seeking compensable schedular ratings for restless leg syndrome and erectile dysfunction are denied. A 10 percent (but no higher) rating is warranted for the Veteran's hypertension throughout, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs